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PRINCIPLES 


LAW    OF    G^NTRACTS, 


t^c./7L 


AS  APPLIED   BY   COURTS   OF   LAW. 


THERON  METCALF. 


NEW    YORK: 

PUBLISHED   BY   KURD   AND   HOUGHTON. 

PHILADELPHIA:   KAY  AND   BEOTHER, 

1868. 


T 

\%^ 

Entered  according  to  Act  of  Congress,  in  the  year  1867,  by 

Theodoke  Metcalf, 

in  the  Clerk's  Office  of  the  District  Court  for  the  District  of  Massachusetts. 


KIA'ERSIDE,    CAMBRIDGE: 

BTEKEOTYPED     AND    PRINTED     BT 

H.   O.    HOUGHTON  AND   COMPANY. 


NOTICE. 

— • — 

The  first  manuscript  of  the  following  work  was  prepared, 
in  the  years  1827  and  1828,  for  the  sole  purpose  of  being  com- 
municated to  students  in  the  writer's  office,  and  was  thus  used 
for  a  few  years.  Afterwards,  at  the  request  of  the  editors  of 
the  American  Jurist,  it  was  published  in  that  journal,  in  ten 
successive  numbers,  beginning  in  November  1839  and  ending 
in  January  1841.  That  publication  has  recently  been  revised 
and  enlarged  by  references  to  reports  and  treatises  published 
since  1828;  but  no  change  has  been  made  in  the  original 
arrangement.  The  work  is  now  submitted  to  the  members 
of  the  bar,  with  the  writer's  grateful  sense  of  their  kind 
consideration  of  his  other  labors. 

August,  1867. 


792090 


CONTENTS. 


CHAPTER  I. 

DEFINITION    AND    DIVISION    OP    CONTRACTS,    AND    OF    THE    ASSENT    OF 

PARTIES    THERETO. 

PAGE 

Assent  of  parties,  and  herein  of  duress,  error  as  to  the  subject; 
fraud 1-35 

CHAPTER  n. 

PARTIES   TO    CONTRACTS. 

The  legal  power  of  different  parties,  to  wit,  of  Infants,  Non  Compotes 
Mentis,  Drunkards,  Married  Women,  Outlaws  and  persons  attainted, 
Persons  exoommunicated,  Aliens,  Spendthrifts,  Slaves,  Seamen,  Attor- 
neys and  other  agents,  Partners,  Executors  and  Administrators,  Guard- 
ians, Corporations 36-160 

CHAPTER  IH. 

CONSIDERATION   OF    CONTRACTS. 

Some  benefit  to  the  promisor  or  inconvenience  to  the  promisee.  For- 
bearance, Surceasing  suit  and  Compromise,  Moral  Obligation,  Mutual 
Promises,  Gratuitous  Promises  and  Services,  Subscriptions,  Assignment 
of  choses  in  action,  Accepting  part  in  satisfaction  of  the  whole.  Con- 
sideration that  cannot  be  performed.  Unconscionable  bargians.  Unlaw- 
ful consideration,  and  failure  of  consideration  .         .         .         .161-220 

CHAPTER  IV. 

UNLAWFUL   CONTRACTS. 

Those  which  violate  the  common  law  or  a  statute ;  void  at  common  law 
for  immorality ;  for  undertaking  to  do  or  omit  to  do,  the  doing  or  omis- 
sion of  what  is  punishable  by  criminal  process ;  contrary  to  sound  policy ; 


VI  CONTENTS. 

PAGE 

as  in  restraint  of  trade  or  marriage ;  post  obltt,  &c.,  Contracts  to  obstruct 
the  course  of  justice  ;  for  violation  of  statute  provisions.  Contracts  that 
are  subsequent  and  collateral  to  those  which  are  unlawful,  with  ex- 
amples.    In  fraud  of  bankrupt  and  insolvent  acts.  .         .         .     221-271 

CHAPTER  V. 

CONSTRUCTION  OF  CONTRACTS.   ^ 

Several  established  rules  of  construction,  with  examples  of  their  appli- 
cation  272-316 

CHAPTER   VI. 

OBLIGATION   OF   CONTRACTS. 

Cases  which  have  arisen  and  been  decided  under  the  provision  of  the 
Constitution  of  the  United  States,  that  no  State  shall  pass  any  law  im- 
paring  the  obligation  of  contracts  .......     317-342 


LIST    OF    CASES 

THAT  ARE   CITED   WITH  THE   PARTIES'  NAMES. 


Abbey  v.  Chase 
Abbot  V.  Bayley 

V.  Rookwood 
Abbott's  Appeal 
Abree's  case 
Acheson  v.  Miller 
Ackley  v.  Hoskins 
Ada,  The 
Adams  v.  Bankart 
V.  Brackett 
V.  Frothingham 
V.  Lindsell 
V.  Pease 
Adamson  v.  Jarvis 
Agnew  V.  Fox 
Alabama  n.  Georgia 
Alcook  V.  Giberton 
Aldi-ich  V.  Abrahams 
Alexander  v.  Motlow 
V.  Owen 
V.  Pierce 
Alger  V.  Colwell 
Allaire  v.  Ouland 
Allen  V.  Allen 
V.  Culver 
V.  Hearn 
V.  Lyons 
V.  McKeen 
V.  Prater 
V.  Rescous 
Allis  V.  Billings 
AlofFiJ.  Scrimshaw 
American  Bank  v.  Adams 
Ames  V.  Chew 
Amherst  Academy  v.  Cowls 
Anderson  v.  Pitcher 

V.  Tompkins 
Andrews  v.  Planters'  Bank 

Heirs  v.  Brown's  Adm'r 
Annandale  v.  Harris 
Anthony  v-  Butler 
Antoine  v.  Morshead 
Appleton  V.  Binks 
Archer  v.  Marsh 


Page 

106 

Arlington  v.  Merrick 

87 

Armfield  v.  Tate 

316 

Armstrong  v.  Hersey 

129 

V.  Robinson 

280 

V.  Toler 

12 

Arnold  v.  Brown 

155 

V.  Hickman 

99 

V-  Lyman 

120 

V.  Wain  Wright 

91 

Arundel  v.  Gardiner 

301,  309 

Ashbrooke  v.  Snape 

17,  23 

Ashfeild  v.  Ashfeild 

298 

Aspinall  v.  Wake 

11 

Atherford  v.  Beard 

40 

Atherton  v.  Tilton 

301 

Atkins  V.  Banwell 

235 

V.  Hill 

49 

V.  Tredgold 

166 

Atkinson  v.  Ritchie                    2 

31 

Attorney-General  v.  Andrews 

26 

V.  Parker 

140 

Atwater  v.  Woodbridge 

13 

Aubert  v.  Maze 

40 

Auld  V.  Butcher 

213 

Austin  V.  Carter 

239 

V.  Vaughan 

295 

Aven  V.  Beckom 

328 

Avery  v.  Halsey 

177 

Averill  v.  Hedge 

246 

Ayer  v.  Warren 

81 

Ayliffe  v.  Archdale 

308 

284 

86,91 

B. 

185 

278 

Babcock  v.  Beman 

120,  125 

V.  Wilson 

119 

Bache  v.  Proctor 

m'r     129 

Backus'  Adm'r  v.  McCoy 

222 

Badger  v.  Bank  of  Cumberland 

124 

V.  Piiinney 

240 

V.  Williams 

110 

Bafeild  v.  Collard 

234 

Bagster  v.  Earl  Portsmouth 

Page 

281 

62 

137 

122 

265 

119 

82 

209 

129 

12 

174 

60 

148 

239 

118 

180 

148 

143 

214,  340 

158 

310 

326 

265 

324 

301 

131 

139 

18 

15,18 

86,89 

75 


108 

287 
303 
150 
156 

47,53 
228 
205 

78,  82 


VUl 


LIST   OF   CASES   CITED. 


Page 
Bailey  v.  Bussing  12 

V.  Starke  131 

Baillie  v.  Kell  7 

Bainbridge  v.  Firmston  171 

V.  Pickering  71 

Bainham  v.  Manning  222 

Baker  v.  Bandy  119 

V.  Corey  103 

V.  Haley  214 

V.  Hoag  185 

V.  Smith  183 

V.  Townsend  226 

V.  White  231 

Balfe  V.  AVest  166 

Ball  V.  Dunsterville  124,  125 

V.  Gilbert  238 

V.  Hesketh  56 

Ballard  v.  Walker  3 

Baltimore,  Mayor,  &c.  of  v.  Balti- 
more &  Ohio  Railroad  Co.  159 
Ballou  V.  Talbot  109 
Bank  of  Augusta  v.  Earle  158 
of  British  N.  A.  v.  Hooper 

108,  111 
of  Columbia  v.  Patterson  7 

of  Commerce  i^.  Selden  119 

of  Genessee  v.  Patchin  Bank  160 
of  Hamburgh  v.  Wray  109 

of  S.  Carolina  v.  Humphreys  135 
of  Tennessee  v.  Saffarrans  119 
of  United  States  v.  Dandridge 

156,  158 

of  Washington  v.  Triplett        277 

Barber  v.  Barber  89 

V.  Brace  276 

V.  Vincent  70 

Barclay  ?'.  Lucas  •  282 

Barden  v.  Keverberg  88 

Barjeau  v.  Walmsley  269 

Barker  v.  Halifax  194 

V.  Hodgson  214 

V.  Parker  282 

Barkhamsted  v.  Case  219 

Barlow  v.  Cong.  Society  in  Lee        111 

V.  Gregory  341 

V.  Ocean  Ins.  Co.  177 

V.  Reno  121 

V.  Wiley  34 

Barnaby  v.  Barnaby  58,  62 

Barnehurst  v.  Cabbot  175 

Barnes  v.  Headley  181 

Barney  v.  Coffin  104 

Barrett  v.  Buxton  82 

Barrington  v.  Bank  of  Washington  284 

Barry  v.  I'agc  111 

Bartholomew  v.  Jackson  184 

Bartlett  v.  Attorney  General  282 

V,  Emery  74 

V.  Jones  118 

V.  Vinor  254 


Bartlett  v.  Wells 

V.  Wyman 
Barton  v.  Fitzgerald 

V.  Shirley 
Bass  V.  Dinwiddle 

V.  Mayor  of  Nashville 
V.  Peevey 
Bateman  v.  Ashton  Under- 
Batho  V.  Salter 
Batson  v.  Murrell 
Battersey's  case 
Baugh  V.  Price 
Baxter  v.  Clark 

V.  Rodman 

V.  Taber 

V.  Wales 
Bay  V.  Cook 
Baylies  v.  Fettyplace 
Baylis  v.  Dineley 
Beach  v.  Parish 

V.  Hotchkiss 

V.  Vandenburgh 
Beall  V.  Joseph 
Beals  V.  See 
Beard  v.  Dennis 

V.  Webb 
Bernard  v.  Dufour 
Beardslee  v.  Richardson 
Beauchamp  v.  Powley 
Beaumont  v.  Reeve 
Beavan  v,  McDonnell 
Beawfage's  case 
Beck  V.  Barlow 
Beckham  v.  Drake 
Beckwith  v.  Cheever 
Beeler  v.  Bullitt 

V.  Young 
Beely  v.  Wingfield 
Belfast  V.  Leominster 
Belfour  v.  Weston 
Bell,  ex  parte 

V.  Chaplain 

V.  Gardiner 

v.  Morrison 

Bellaires  v.  Ebsworth 

Bennett  v.  Brooks 

V.  Stickney 
Bensell  v.  Chancellor 
Benskin  v.  Frcncli 
Bensley  v.  Bignold 
Benson  v.  Flower 
Bentley  v.  Morse 
Berolles  v.  Ramsay 
Berry  v.  Ransdall 
Besfich  V.  Coggil 
Bettisworth  v.  Campion 
Betts  V.  Gibliins 
Bevcn  v.  Cowling 
Biddle  V.  Wilkins 
Bidwell  V.  Catton 


Lynn 


52 
239 
287 
199 
332 
335 
239 
159 
244 
140,  141 

12 
238 
118 
104 
336 
215 
109 
214,  340 
40,  56 
213 
181 
184 

96 

80 
235 

86 
127 
165 
165 
223 

80 
243 
152 
126 

14 

38 
73,  75 
226 
166 
213,  214 
267 
207 
178 
135 
282 
257 
122 

81 
242 
255 
190 
181 

70 
332 
179 
183 

12 
175 
148 
172 


LIST   OF   CASES    CITED. 


Bigelow  V.  Bridge 

281 

V.  Collaiiiore 

213 

V.  Pritchard 

332 

Biggs  V.  Lawrence 

116 

Billings  V.  Avery 

28 

Billmeyer  v.  Evans 

334 

Binghamton  Bridge 

336 

Binney  v.  LeGal 

121 

Binnington  v   Wallis 

223 

Binstead  v.  Buck 

185 

Bishop  of  Chester  v.  Freeland 

247 

Bissett  V.  Bissett 

29 

Bixler  u.  Ream 

172 

Biachford  v.  Christian 

81 

Blackburn  v.  McCallister 

124 

Blackford  v.  Peltier 

332 

Blackwood  v.  VauVleet 

335 

Blair  v.  Robinson 

112 

Blake  v.  Peck 

177 

V.  Wheadon 

131 

Blankley  v.  Winstanley 

311 

Bledsoe  v.  Cains 

110 

Blight  V.  Page 

214 

Bliss  V.  Lee 

149 

Blithman  v.  Martin 

242 

Blundell  v.  Catterall 

297 

Blunden  v.  Baugh 

43 

Blunt  V.  Melcher 

66 

Blymire  v.  Boistle 

210 

Bogert  V.  Hertell 

153 

Boggett  V.  Frier 

87 

Bohanan  v.  Pope 

209 

Bond  V.  Aitkin 

124 

Bond's  Heirs  v.  Smith 

141 

Boody  I'.  McKenney                       60,  61 

Bool  V.  Mix                                    44,  45 

Booth  V.  Hodgson                        264 

265 

Borthwick  v.  Carruthers 

58 

Bosanquet  v.  Wray 

130 

Bosden  v.  Thinn 

194 

Boston  V.  Capen 

28 

Boston  Bank  v.  Chamberlain 

60 

Boston  Hat  Manuf  Co.  v.  Messen- 

ger 

282 

Boston  &  Lowell  Railroad  v.  Salem 

and  Lowell  Railroad 

336 

Boston  &  Maine  Railroad  v.  Bart- 

lett      . 

15 

Bostwiek  v.  Atkins 

62 

Bothick's  Adm'r  v.  Purdy 

189 

Bouchell  V.  Clary 

74 

Bourne  v.  ]\Iason 

207 

Boutell  V.  Cowdin 

185 

Bowdoinhara  v.  Richmond 

331 

Bowes  V.  Paulet 

189 

Bowie  V.  Maddox 

113 

Bowker  v.  Burdekin 

122 

V.  Childs 

191 

Bowman  v.  Cecil  Bank 

119 

Bowser  v.  Bliss 

235 

Page 
Bowyer  v.  Anderson  118 
Boyce  v.  Owens  88 
Boyd  V.  Hind  192 
V.  Hitchcock  191 
Boyden  v.  Boyden  63 
Boyers  v.  Elliott  127 
Boynton  v.  Hubbard  238 
Bradley  v.  Pratt,                              40,  76 
V.  Rice  298 
Brady  v.  Spurck  151 
Bragg  V.  Tanner  233 
Brainard  v.  Boston  &  N.  York  Rail- 
way 302 
Brampton  v.  Beddoes  237 
Brandt  v.  Foster  151 
Branton  v.  Taddy  266 
Bray  v.  Kettell  111 
Breckenridge  v.  Ormsby  81 
V.  Shrieve  121 
Breed  v.  Judd  49 
Brent's  Ex'r  v.  Bank  of  Metropolis    277 
Bret  V.  J.  S.  and  wife  183 
Brett  v.  Close  226 
Brettel  v.  Williams                     119,  121 
Brewer  v.  Dyer  210 
Brewster  v.  Hardeman  136 
V.  Hough  335 
Bridge  v.  Cage  244 
V.  Wain  275 
Bridgewater  Academy  v.  Gilbert     186 
Brierly  v.  Cripps  135 
Brinley  v.  Kupfer  132 
V.  Mann  105 
Brisban  v.  Boyd  18 
Bristoe  v.  Evans  324 
Bristow  V.  Eastman  54 
Britton  v.  Turner  8 
Brooke  v.  Washington  127 
Brooker  v.  Scott  70 
Brooks  V.  Brooks      '  155 
V.  Crowse  70 
V.  Martin                        117,  269 
V.  Stuart  308 
V.  White  191 
Brough  V.  Whitmore  275 
Broughton   v.   Manchester   Water 

Works  157 

Broughton  v.  Conway  285 

Brown  v.  Anderson  140 

V.  Austin  112 

V.  Caldwell  62 

V.  Cook  117 

V.  Garbrey  171 

V.  Jones  98 

V.  Lull  100 

V.  McCune  51 

V.  O'Brien  209 

V.  Penobscot  Bank  334 

I'.  Quilter  214 

V.  Reves  219 


LIST   OF   CASES   CITED. 


Page 

Brown  v.  Turner  266 

V.  Winnissimmet  Co.  159 

Browne's  case  173 

Browning  v.  Wright  286 

Bruce  v.  Lee  241 
V.  Pearson                              14,  ly 

Bruen  v.  Marquand  126 

Brundred  v.  Muzzy  118 

Bryan  v.  Reynolds  230 

Bryant  v.  Goodnow  185 

Bryson  v.  Whitehead  287 

Buchan  v.  Sumner  129 

Buchoz  V.  Grandjean  120 

Buck  V.  Barnard  145 

Bucker  v.  Klorkgeter  101 

Bulfinch  v.  Winchenbach  117 

Bulklev  V.  Dayton  126 

Bull  r/Harris  120 

Bullock  V.  Dodds  93 

Bulmer,  ex  parte  261 
Buncombe  Turnpike  Co.   v.   Mc- 

Carson  157 

Bunker  v.  Athearn  142 

Bunn  V.  Guy  234 

Burley  v.  Russell  51 

Burn  V.  Burn  124 

Burnet  v.  Bisco  14 

V.  Burnet  156 

Burnside  v.  Merrick  128 

Burr  V.  Williams  135 

Burrell  v.  Jones  110 

Burroughs  v.  Lowder  244 

V.  Richman  82 

Burton  v.  Palmer  66 

Busby  V.  Conoway  177 

Bustin  V.  Rogers  256 

Butcher  v.  Butcher  280 

Butler  V.  Commonwealth  341 

V.  Rhodes  192 

Butterfield  v.  HartShorn  210 

Byars  v.  Doore's  Adm'r  109 

Bynum  v.  Bostick  96 

Byrd  v.  Fox  132 

c. 


Cady  V.  Shepherd 

124 

Calder  v.  Kurby 

334 

Caldwell  v.  Stileman 

138 

Call  V.  Ilagger 

332 

Callagan  v.  ilallett 

244 

Came  o.  Brigham 

158 

Campbell  v.  Perkins 

52 

V.  Stakes 

53 

Cannan  v.  Brycc 

260,  261 

Cardell  v.  Bridge 

8 

Cargill  I'.  Power 

835 

Carleton  v.  Jirooks 

189 

Carlton  v.  Bailey 

216 

Carnegie  v.  Morrison  209 

Carr  v.  Allison  179 

V.  HoUiday  80 

Carrol  v,  Blencow  86 

Carson  v.  Blazer  298 

V.  Clark  179 

Gary  v.  Staflfbrd  224 

Casey  v.  Brush  132 
Gates  V.  Wadlington                          .  298 

Caudell  v.  Shaw  86 

Chadbourne  v.  Rackliffe  45 

Chadsey  v.  Harrison  132 

Chadwick  v.  Knox  229 

Chamberlain  v.  Goldsmith  247 

V.  Walker  134 

17.  Williamson  149 

Chamberlaine  v.  Hewson  89 

Champion  v.  Bostick  114 

Chandelor  v.  Lopus  31 

Chanudflower  v.  Prestley  279 

Chapel  V.  Hickes  7 

Chapman  v.  Crane  155 

Chappel  V.  Brockway  235 
Charles  River  Bridge  v.  Warren 

Bridge  335 

Chase  v.  Dwinal  26 

V.  Garvin  131 

Chater  v.  Beckett  253 

Chazournes  v.  Edwards  119 

Cheap  V.  Cramond  114 

Chelmsford  Co.  v.  Demarest  281 

Cheshire  v.  Barnett  63 

Chesman  v.  Nainby  234,  236 

Chesterfield,  Earl  of,  v.  Jansen         238 

Chester  Glass  Co.  v.  Dewey  159 

Child  V.  Ficket  288 

V.  Starr  297 

Childers  v.  Wooley  12 

Childs  V.  Monins  139 

Chiles  V.  Nelson  18 

Christie  v.  Royal  Bank  138 

Church  V.  Church  198 

Churchill  v.  Perkins  227 

City  Bank  v.  Cutter  277 

Glamorgan  v.  Lane  61 

Clancy  v.  Overman  214 

Clap  V.  McNeil  302 

V.  Smith  256 

Clarivil  v.  Edwards  307 

Clark  V.  Dibble  132 

V.  Farrington  159 

V.  Herring  145 

V.  Martin  324 

V.  Russel  175 

V.  Swift  151 

V.  Titcomb  158 

Clarke's  case  21 

Clarke  v.  Leslie  70 

V.  Perriam  224 

V.  School  District  158 


LIST   OP   CASES   CITED. 


XI 


Clarke  i-.  Thompson  187 

Clayton  v.  DiUy  267 

Clement  v.  Hadlock  118 

V.  Wheeler  155 

Clerk  V.  Comer  236 

Clippinger  v.  Hepbaugh  230 

Close  V.  Phipps  26 

Clowes  V.  Brooke  70 

Clugas  V.  Penaluna  260 

Coates  V.  Blush  271 

V.  Wilson  70 

Cobb  V.  Charter  26 

Codman  v.  Evans  302 

V.  Wiiislow  310 

Cock  V.  Richards  231 

Coffee  V.  Brian  134 

Coke  V.  Hewit  168 

Cohen  v.  Armstrong  58 

Colcord  V.  Swan  90 

Coldspring  Iron  Co.  v.  Tolland        297 

Cole  V.  Eaton  154 

V.  Hawes  287 

V.  linight  280 

V.  Pennoyer  62 

V.  Saxby  58 

Collen  V.  Wright  109 

Collings  V.  Hope  276 

Collins  V.  Evans  12 

V.  Merrell  216 

ColweU  V.  Alger  140,  146 

Combs  V.  Fisher  214 

Combes's  case  105 

Comegys  v.  Vasse  190 

Commissioners  of  Canal  Fund  v. 

Perry  185 

Commonwealth  v.  Bagley  229 

V.  Baynton  281 

V.  Bird  337 

V.  Chapin  298 

V.  Collins  28 

V.  Cony  229 

V.  Fairfax  281 

V.  Field  28 
V.    New     Bedford 

Bridge  334 

Comstock  V.  Smith  194,  198 

Comyns  v.  Boyer  254 

Conant  v.  Kendall  154 

Concord  Bank  v.  Bellis  88 

Conner  v.  Henderson  31 

Conroe  v.  Birdsall  51 

Cook  V.  Bradley  179 

V.  Mix  219 

V.  Booth  310 

Cooke  V.  Clayworth  82 

V.  Oxley  19,  21 

V.  Toombs  252,  254 

V.  Wilson  110 

Cooks  V.  Douze  174 


Page 
Coolidge  V.  Williams  299 

Cooper  V.  Parker  177 

Coovert  v.  O'Conner  297 

Copes  V.  Matthews  112 

Copley  V.  Richardson  135 

Coppock  V.  Bower  230 

Conderoy's  case  187 

Cortelyo'u  v  Van  Brundt  311 

Cornwall  v.  Gould  7 

V.  Hoyt  84 

Corpe  V.  Overton  48,  49 

Cothay  v.  Fennell  126 

V.  Murray  316 

Cottrell,  ex  parte  224 

Cotton  V.  Wescott  201 

Coulston  V.  Carr  216 

County  Commissioners  v.  Jones       186 
Coventry  v.  Barton  13 

Course  v.  Prince  132 

Cowell  V.  Watts  148 

Cowlin  V.  Cook  175 

Cox's,  Lady,  case  224 

i>.  Troy  18 

Crabtree  v.  May  64 

Craig  V.  Harper  14,  15 

Crane  v.  French  121 

Crawford  v.  Morrell  216,  253 

V.  Whittal  148 

Cray  v.  Rooke  222 

Crayford  v.  Crayford  287 

Cresinger  v.  Lessee  of  Welch       47,  60 
Crisp  w.  Gamel  216 

Crocker  v.  Higgins 
Crooker  v.  Crooker 
Crosley  v.  Arkwright 
Cross  V.  Cheshire 
Crosthwait  v.  Gardner 

V.  Ross 
Croucher  v.  Oakman 
Crow  V.  Rogers 
Crozier  v.  Carr 

V.  Kirker 
Crowley  v.  Swindles 
Cullen  V.  Pliilp 
Cumber  v.  Wane 
Cummings  v.  Powell 
Cunningham  v.  Bragg 

V.  Littlefield 
V.  Schoular 
Cunningham's  Heirs  v.   Cunning- 
ham's Ex'rs 
Curling  v.  Chalklen 
Currier  v.  Hodgdon 
V.  Silloway 
Curtin  v.  Pattoa 
Cutler  V.  How 
V.  Tufts 
Cypress,  The 


206 
129 
251 
133 
148 
122 
101 
205 
110 
123 
292 
269 
191,  192 
40 
135 
120 
150 


96 

282 

187,  189 

114 

41 
215 
291 
101 


Xll 


LIST   OF    CASES   CITED. 


D. 


Dabridgecourt  v.  Smallbrooke 

245 

Dale  V.  The  Governor 

338 

Dallas  V.  HoUingsworth 

49 

Damon  v.  Granby 

110 

Dana  v.  Coombs 

62 

y.  Lull 

120 

V.  Stearns 

64 

Dance  v.  Girdler 

282 

Dane  v.  Kirkwall 

80 

Danforth  v.  Schoharie,  &c.  Turn- 

pike 

157 

Daniels,  ex  parte 

265 

V.  Hatch 

191 

Dann  v.  Spurrier 

315 

Darby  v.  Boucher 

73 

Darst  V.  Roth 

124 

Dartmouth  College  v.  Woodward 

158 

Dartnall  v.  Howard 

165 

Davenport  v.  Gentry's  Adni'r 

189 

V.  Nelson 

88 

Davis  V.  Drew 

155 

V.  French 

147 

V.  Lyman 

151 

V.  Mason 

236 

V.  Maxwell 

8 

V.  McVickers 

219 

V.  New  Brig 

276 

V.  Pope 

144 

V.  Sims 

34 

V.  White 

113 

V.  Wright 

139 

Davis's  Adm'r  v.  Smith 

213 

Davison  v.  Hanslop 

172 

Davy  I'.  Cracknell 

8 

Dawes  v.  Shed 

140 

Dawn,  The 

102 

Dawson  v.  Massey 

156 

Day  V.  Lafferty 

125 

Dean  v.  Newhall 

308 

V.  Ilichmond 

89 

Deason  v.  Boyd 

63 

DeBegnis  v.  Armistead,             116 

,254 

Deckard  v.  Case 

120 

DeCordova  v.  City  of  Galveston 

323 

Dedham  Bank  v.  Chickering 

282 

Deeks  v.  Strutt 

145 

Deerfield  v.  Arms 

296 

Deering  v.  Chapman 

216 

Delano  v.  Blake 

63 

Delaval  v.  Clare 

71 

Delaware,  &c.  Canal  v.  Westches- 

ter County  Bank 

209 

DeMoranda  r.  Durkin 

245 

Deming  v.  Colt 

120 

Den  i;.  Hopkinson 

277 

V.  Foy 

325 

Denn  v.  Dolman 

251 

Denny  v.  Lincoln  242 

Derby  Turnpike  Co.  v.  Parkes         328 

Dermott  v.  Jones  213 

De  Roo  V.  Foster  52 

Deux  V.  Jefferies  307 

Devore  v.  Sunderland  151 

Dew  V.  Parsons  244 

DeWahl  v.  Braune  87 

Dewey  v.  Van  Deusen  149 

Dickinson  v.  Callahan  144 

V.  Legare  120 

V.  Lilwall  276 

0.  Valpy  113 

Dickson  v.  Desire's  Adm'r  151 

Dilk  V.  Keighley  72 

Dillon  V.  Brown  129 

Dishorn  v.  Denaby  210 

Disborough  v.  Heirs  of  Bidleman     143 

Divine  v.  Mitchum  129 

Doane  v.  Willcutt  297 

Dob  V.  Halsey  114,  119 

Dobson  V.  Crew  279 

Dodge  V.  Woolsey  334 

Doe  V.  Abernathy  48,  61 

V.  Anderson  287 

V.  Benson  277 

V.  Clarke  305 

u.  Deakin  89 

V.  Dixon  815 

V.  Greathed  294 

V.  Keeling  304 

V.  Laming  304 

V.  Lancashire  305 

V.  Lea  277 

V.  Pitcher  250 

V.  Roe  124 

V.  Salkeld  306 

V.  Simpson  806 

V.  Spry  304 

V.  Whittingham  806 

V.  WiUiams  314 

V.  Worsley  304 

Dogget  V.  Vowell  194 

Dole  V.  Bull  243 

Dominick  v.  Michael  45 

Donahue  i'.  Emery  164 

Doorman  i;.  Jenkins  165 

Doremus  v.  McCormick  120 

Dormer  v.  Knight  303 

Doty  V.  Wilson  181,  198 

Doughty  V.  Neal  212 

Douglass  V.  Eyre  98 

Dow  V.  Clark  210 

Dowdenay  v.  Oland  172 

Drage  v.  Ibbcrson  227 

Drake  u.  Ramsay  60 

Draper  v.  Jackson  90 

Draughan  v.  Bunting  209 

Drumright  v.  Philpot  124 

Drury  v.  Defontaine  254 


LIST   OP   CASES   CITED. 


Page 

Page 

Dubois  V.  Del.  &  Hudson  Canal       110 

El  ting  V.  Vanderlyn 

172 

Dubose  V.  Wheddon 

75 

Elwell  V.  Martin 

55 

Duck  V.  Abbott 

131 

V.  Quash 

153 

Dudgeon  v.  O'Connell 

126 

V.  Shaw 

105 

Duffy  V.  S hockey 

237 

Elwood  V.  Monk 

209 

Duke  V.  Andrews 

19 

Ely  V.  Peck 

98 

Duncan  v.  Kieffer 

7 

Emerson  v.  Knower 

126 

V.  Lowndes 

119 

V.  Taylor 

301 

V.  Lyon 

133 

Emery  v.  Fell 

199 

V.  Topham 

17 

Emly  V.  Lye 

108 

Duncomb  v.  Tickridge 

71 

Emmons  v.  Murray 

61 

Dunlop  V.  Higgins 

17 

Emmott  V.  Riddel 

15 

Dunn  V.  Snell 

187 

English  V.  New  Haven  &  North 

Dupuy  v.  Johnson 

11 

ampton  Co. 

335 

Durkee  r.  Vermont  Central 

Rail- 

Ephraims  v.  Murdock 

209 

road 

18 

Etheridge  v.  Binney 

123 

Dusenbury  v.  Ellis 

109 

Evans  v.  Brown 

163 

Dutton  V.  Poole 

205,  208 

V.  Drummond 

137 

Duvall  V.  Craig 

110 

V.  Eaton 

339 

Dyer  v.  Clark 

128 

V.  Harrison 

78 

Dyster's  case 

255 

V.  Huey 

27 

Evelyn  v.  Chichester 

63 

Everit  v.  Strong 

125 

E. 

Ewing  V.  Osbaldiston 

116 

Eadie  v.  Slimmon 

28 

Eagle  Bank  v.  Smith 

31 

F. 

Earle  v.  Peale 

70,73 

V.  Reed 

76 

Faikney  v.  Reynous 

263 

Early  v.  Mahon 

181 

Fairbanks  v.  Blackington 

268 

Eastabrook  v.  Smith 

287 

Fairlie  v.  Denton 

210 

East  Anglian  Eailway  Co.  v. 

East- 

Faith  V.  Richmond 

123 

ern  Counties  Railway  Co. 

158 

Faithorne  v.  Blaquire 

89 

Eastern  Railroad  v.  Benedict 

108,  111 

Fales  V.  Mayberry 

268 

East  London  Water  Works  v 

Bai- 

Fallowes  v.  Taylor 

227 

ley 

157 

Falls  V.  Gaither 

18 

Eastman  v.  Wright 

126 

Fanning  v.  Chadwick 

132 

Eastwood  V.  Kenyon 

182 

Fanshor  v.  Stout 

242 

Eaton  V.  Lincoln 

192 

Farebrother  v.  Ansley 

12 

Eckhart  v.  Reidel 

105 

Farmer  v.  Russell 

263 

Eckstein  v.  Frank 

51 

Farmer's  Bank  v.  Maxwell 

159 

Edis  V.  Bury 

314 

Farmington  Academy  v.  Allen 

185 

Eddy  V.  Herrin 

26 

Farnsworth  v.  Garrard 

7 

Eden's  case 

66 

Farrer  v.  Countess  Granard 

87 

Edson  V.  Fuller 

187 

Faucett  v.  Osborn 

118 

Edwards  v.  Golding 

108 

Fay  V.  Cheney 

149 

V.  Higgins 

71 

Featherston  v.  Hutchinson 

242 

V.  Kelley 

172 

Felch  V.  Taylor 

209 

Egberts  v.  Wood 

120 

Fellows  V.  Wyinan 

135 

Eldridge  v.  Rowe 

8 

Felton  V.  Dickinson 

210 

Eliason  v.  Henshaw 

19 

Fennell  v.  Ridler 

256 

EUicott  V.  Peterson's  Ex'r 

179 

Fenner  v.  Meares 

187 

Elliot  V.  Davis 

122 

Fenton  v.  Clark 

144 

V.  Elliot 

156 

V.  HoUoway 

82 

Elliott  V.  Holbrook 

126 

V.  Pearson 

278 

V.  Swartwout 

20 

Ferguson  v.  Bell 

61 

Ellis  V.  Ellis 

70,  72 

V.  Harwood 

292 

V.  Wild 

31 

V.  Porter 

166 

Ellison  V.  Chapman 

133 

Ferrers  v.  Costello 

182 

Elsee  V.  Gatward 

b 

166 

Fessenden  v.  Jones 

154 

LIST    OP   CASES   CITED. 


Page 

Page 

Field  V.  Crawford 

211 

Frisbee  v.  Hoflfhagle 

219 

Filson's  Trustees  v.  Himes 

216 

Fritz  V.  Thomas 

143 

Fish  V.  Kempton 

107 

Fromont  v.  Coupland 

117 

V.  Miller 

156 

Frost  V.  Inhabitants  of  Belmont        230 

V.  Richardson 

139 

Frye  v.  Tucker 

159 

V.  Thomas 

177 

FuUam  v.  West  Brookfield 

110 

Fisher  v.  Jewett 

74 

Fuller  V.  Abbott 

250 

V.  Mowbray 

40 

V.  Dame 

230 

V.  Smith 

302 

V.  Hooper 

108 

Fisk  V.  Cushman 

91 

V.  Prest 

242,  243 

V.  Mead 

135 

Fulton  V.  Williams 

181 

Fiske  V.  Eldridge 

108 

Furley  v.  Wood 

277 

Fitch  V.  Harrington 

115 

Furnes  v.  Smith 

53 

V.  Sutton 

191 

Fitts  V.  Hall 

51 

Fitzgerald  v.  Trant 

308 

G. 

Fleming  v.  Alter 

209 

Fletcher  v.  Harcot 

12 

Gainsford  i;.  Griffith 

287 

V.  Peck 

324 

Gaitskill  v.  Greathead 

216 

Flight  V.  Bolland 

38 

Gale  V.  Leckie 

183,  225 

Folsom  V.  McDonough 

285 

V.  Reed 

286 

Foord  V.  Wilson 

287 

V.  Wells 

156 

Forbes  v.  Forbes 

156 

Gallini  v.  Laborie 

259 

Ford  V.  Fothergill 

71 

Gallway  v.  Matthew 

118 

V.  Phillips 

57 

Galway,  Lord,  v.  Matthew 

110 

V.  Whitmarsh 

113 

Gansevoort  v.  Williams 

119 

V.  Williams 

110 

Gardner  v.  Adams 

190 

Forman  i\  Wright 

178 

V.  Lane 

31 

Formby  v.  Pryor 

229 

V.  Tennison 

187 

Forney  v.  Benedict 

143 

Garnett  v.  Macon 

307,  308 

Forrester's  case 

54,  55 

Garrison  v.  Sandford 

151 

Forsler  v.  Taylor 

255 

Gaskell  v.  King 

250 

Forsyth  v.  Marbury 

336 

Gaunt  V.  Hill 

14 

Foshay  v.  Ferguson 

27 

Gavit  V.  Chambers 

298 

Foster  v.  Allanson 

133 

Gayle  v.  Ennis 

148 

V.  Essex  Bank 

333 

Gazzam  v.  Kirby 

8 

V.  Peyser 

35 

Geddes  v.  Pennington 

34 

V.  Starkey 

143 

Geer  v.  Putnam 

256 

Fowle  V.  Harrington 

122 

George  v.  Baker 

153 

Fowler  v.  Bott 

213 

V.  Harris 

185 

V.  Richardson 

135 

Gervis  v.  Peade 

287 

V.  Shearer 

105 

Gibbon  v.  Young 

276 

Fox  V.  Clifton 

114 

Gibbons  v.  Prewd 

217 

V.  Frith 

108 

Gibbs  V.  Bryant 

7 

V.  Mackreth 

85 

Gibson  v.  Dickie 

223 

V.  Tilly 

245 

V.  Irby 

154 

Foy  V.  Troy  &  Boston  Railroad 

190 

V.  Moore 

134 

Franco  v.  Bolton 

222 

V.  Soper 

48,81 

Frankland  v.  McGusty 

119 

Gilbert  v.  Sykes 

239 

Franklin  v.  Bradell 

198 

Gill  V.  Harewood 

174 

r.  Thorncbury 

63 

Gilman  v.  Dwight 

235 

Frazor  v.  Gervais 

34 

V.  Hall 

8 

I'.  Ilatton 

239 

Gilmore  v.  N.  Amer.  Land  Co 

128 

Frazier  v.  Massey 

39 

Gilpins  V.  Consequa 

214 

Frcar  v.  Hardenbergh 

179 

Given  v.  Driggs 

245 

Frcary  v.  Cook 

298 

Gleason  v.  Smith 

8 

French  v.  Reed 

166 

Glen  I'.  Hodges 

96 

V.  Styring 

117 

Glover  v.  Ott 

73 

Fridge  r.  The  State 

40 

Good  V.  Cheesman 

192 

Friend  v.  Harrison 

222 

Goodale  v.  Holridge 

246 

LIST   OP   CASES   CITED. 


XV 


Goodburn  v.  Stevens  l29 

Goode  V.  Harrison  b3 

Goodrich  v.  Lafflin  7 

Goodright  v.  Richardson  315 

Goodtitle  v.  Bailey  306 

Goodwin  v.  Blake  241 

V.  Follett  191 

V.  Willoughby  176 

Gordon  v.  Martin  7 

Gore  V.  Gibson  82 

Goring  v.  Goring  139 

Gould  V.  Armstrong  176 

Goulding  v.  Davidson  182 

Gouldsborough  v.  Mc Williams  131 

Goupy  V.  Harden  108 

Govver  v.  Emery  12 

Gowland  v.  DeFaria  238 

Grace  v.  Smith  114 

Gram  v.  Cadwell  126 

V.  Seton  124 

Graves  v.  Delaplaine  260 

V.  Graves  184 

V.  Ticknor  164 

Gravier  v.  Gravier's  Heirs  15 

Gray  v.  Deluce  301 

V.  Mathias  222 

Grayson  v.  Lilly  330 

Green  v.  Biddle  332 

V.  Eales  213 

V.  Greenbank  51 

V.  Kopke  110,  111 

V.  Williston  189 

Greenby  v.  Wilcocks  279 

Greenleaf  u.  Cook  219 

Greenwood  v.  Bishop  of  London       250 

V.  Colcock  246 

Greeves  v.  McAllister  182 

Gregg  V.  Thompson  96 

V.  Wyman  257 

Gregory  v.  Paul  87 

V.  Pierce       •  86,  87 

Gremare  v.  Valon  254 

Grey  v.  Cooper  39 

Grigsby's  Ex'r  v.  Nance  133 

Griswold  v.  Waddington  115,  138 

Gross  V.  La  Page  268 

Grosvenor  v.  Lloyd  137 

Grover  v.  Nevill  50 

Gully  V.  Gully  292 

Gurney  v.  Womersley  31 

Gushee  v.  Eddy  189 

Guy  V.  Dii  Uprey  155 

V.  Gower  7 


H. 


Hacker  v.  Newborn 
Hackett  v.  King 
V.  Tilly 


24 
245 


Hadley  u.  Clarke 

214,  340 

Hadves  v.  Levit 

207 

Haight  V.  Sahler 

110 

Halbert  v.  Deering 

189 

Haldemand  v.  Haldemand 

131 

Hale  V.  Hale 

305 

Hall,  ex  parte 

179 

V.  Boyd 

153 

V.  Constant 

191 

V.  Franklin 

116 

V.  Hancock 

305 

V.  Huntoon 

245 

V.  Marston 

210 

V.  Potter 

230 

V.  Robinson 

190 

Hallett  V.  Oakes 

78 

V.  Wylie 

213 

Halsey  v.  Fairbanks 

124,  125 

Hamaker  v.  Eberley 

175,  176 

Hambridge  v.  De  la  Crouee 

121 

Hamilton  v.  Seaman 

135 

Hammon  v.  Huntley 

153 

V.  Roll 

175 

Hamper,  ex  parte 

114 

Hancock  v.  Fairfield 

108 

Handly's  Lessee  v.  Anthony 

301 

Hanford  v.  McNair 

105 

Hands  v.  Slaney 

69 

Hanks  v.  Deal 

74 

Hapgood  V.  Houghton 

146 

Harden  v.  Gordon 

100 

Harding  v.  Souther 

.     104 

Hardres  v.  Prowd 

194 

Hardy  v.  Fairbanks 

111 

V.  Waltham 

326 

Hare  v.  Graves 

214 

Harflet  v.  Butcher 

287 

Harford  v.  Gardiner 

183 

Harman  v.  Johnson 

121 

Harmer  v.  Killing 

69 

V.  Rowe 

228 

Harmony  v.  Bingham 

214 

Harper  v.  Graham 

192 

Harriman  v.  Harriman 

191 

Harris  v.  Carter 

239 

V.  Morris 

9 

V.  Richards 

172 

V.  Roof 

230 

V.  Tyson 

35 

V.  Watson 

239 

Harrison  v.  Cage 

183 

V.  Close 

308 

V.  Conlan 

144 

V.  Jackson 

124 

V.  Sterry 

120 

Hart  V.  Ex'rs  of  Porter 

219 

Hartford  Bridge  Co.  v.  Union  Fer- 

ry Co. 

336 

Hartley  v.  Rice 

231 

Hartman  v.  Kendall 

61 

XT! 


LIST   OF   CASES   CITED. 


Hartness  v.  Thompson 
Harvey  v.  Young 
Harty  v.  Aston 

V.  Gibbons 
Haselden  v.  Whitesides 
Haskell  v.  Blair 
Haslam  v.  Siierwood 
Hasleham  v.  Young 
Haslet  V.  Street 
Hassard  v.  Rowe 
Hassell  v.  Long 

Hastings  v.  Blue  Hill  Turnpike 
Hatch  V.  Dwight 

V.  Mann 

!>.  Purcell 
Hatzfield  v.  Gulden 
Havens  v.  Hussey 
Haverhill   Mut.   Fire   Ins.    Co. 

New  hall 

Hawkes  v.  Saunders  145, 

Hawkins  v.  Barney 
Hay  V.  Mair 

V.  Taliaferro 
Hayden  v.  Middlesex  Turnpike  Co. 
Hayes  v.  Warren  194, 

Haynes  u.  The  State 
Hayward  v.  French 
V.  Leonard 
V.  Young 
Hazard  v.  Hazard 
Head  v.  Providence  Ins.  Co. 
Head's  Ex'r  v.  Manners'  Adni'rs 
Heard  v.  Drake 

V.  Meader 
Hearn  v.  Griffin 
Heath  v.  Wells 
Heathcote  v.  Crookshanks 
Hedley  v.  Bainbridge 
Heenan  v.  Nash 
Heinrich,  The 
Heisler  v.  Knipe 
Helm  V.  VanVleet 
Hemmer  v.  Cooper 
Hemphill  v.  McClimans 
Henderson  v.  Barbee 
Hennesy  v.  Western  Bank 
Henry  v.  Hughes 

V.  Root 
Herring  v.  Dorell 
Hertell  v.  Bogert 
Hesketh  ik  Blanchard 

V.  Gray 
Hewet  V.  Painter 
Ilewit  V.  Morgan 
lleyward's  case 
Hicks  V.  Burhans 

V.  Chaj)man 

V.  Cram 

V.  Gregory 
Higgins  V.  Senior  106, 


Page 
38 

Hill  V.  Buckminster 

Page 
183 

34 

V.  Dunham 

256 

232 

V.  Carter 

242 

212 

V.  Gray 

32 

143 

V.  Spencer 

222 

189 

V.  Walker 

141 

212 

Hilliker  v.  Loop 

126 

121 

Hills  V.  Sughrue 

214 

122 

Himes  v.  Howes 

156 

155 

Hinely  v.  Margaritz 

59 

281 

Hitchcock  V.  Coker 

233 

306 

V.  St.  John 

120 

301 

Hock's  Appeal 

141 

244 

Hockin  v.  Cooke 

276 

200 

Hodgdon  v.  White 

141 

229 

Hodge  V.  Vavisor 

199,  203 

120 

Hodgson  V.  Dexter 

112 

V.  Johnson 

254 

108 

V.  Temple 

261 

148 

Hodsdon  v.  Wilkins 

246 

333 

Hogan  V.  Shorb 

108 

137 

Hoke's  Ex'rs  v.  Fleming 

153 

219 

Holbrook  v.  BuUard 

155 

157 

Holcroft  V.  Dickenson 

183 

195 

Holden  v.  Bloxum 

124 

342 

Holland  v.  Palmer 

271 

118 

Holman  v.  Johnson, 

258,  260,  269 

8 

Holmes  v.  Bellingham 

302 

236 

V.  Blogg 

48 

117 

V.  D'Camp 

74 

158 

V.    Old    Colony 

Railroad 

142 

Corporation 

117 

149 

Holt  V.  Kernodle 

114 

140 

V.  Ward 

89 

233 

Hooper  v.  Cummings 

298 

140 

Homer  v.  Ashford 

233 

191 

V.  Thwing 

53 

121 

Hopkins  v.  MehaflPy 

109 

123 

Hord  V.  Lee 

142 

97 

Horn  V.  Chandler 

66 

153 

Horner  v.  Graves 

234 

148 

Horsfall  v.  Thomas 

35 

34 

Hosier  v.  Arundell 

148 

182 

Howard  v.  Crowther 

190 

124 

V.  Howard 

89 

120 

V.  Priest 

128 

189 

V.  Withara 

219 

63 

Howe  V.  Synge 

250 

175 

Howell  V.  Richards 

287 

153 

Hoxie  V.  Carr 

127 

114 

Hubbard  v.  Cummings 

62 

212 

Hudson  V.  Plets 

190 

276 

Hughes  I'.  Bennet 

287 

155 

V.  Ellison 

120 

314 

Ilulot  V.  Stratton 

257 

198 

Hull  V.  Garner 

121 

155 

Hume  V.  Hinton 

176 

113 

Humphrey  r.  Haskell 

34 

223 

Humphries  v.  Carvalho 

20 

110 

V.  Chastain 

185 

LIST   OP   CASES   CITED. 


XVll 


Page 

Humphrjs  v.  Pratt  11 

Huscombe  v.  Standing  27 

Hunt  V.  Adams  1"1 

V.  Bate  194,  195 

Huntington  v.  Knox  108 

Hurst  V.  Hill  135 

Hutcheson  v.  Blakeman  18 

Hutchinson  v.  Hutchinson  154 

V.  Wetmore  8 


Iggulden  V.  May  311 

Indiana,  &c.  Turnpike  v.  Phillips  330 

Ingledew  v.  Douglass  74 

Ingrahaui  i:.  Wilkinson  296 

Ingram  i'.  Threadgill  298 

Innts  V.  Dunlop  188 

Ipswich,  Inhabts.  of,  Petitioners,  297 

Irvine  v.  Stone  253 

Ives  V.  Jones  13 

V.  Sterling  185 


Jackson  v.  Beach  306 

V.  Burchin  44,  61 

V.  Carpenter  44,  61 

V.  Clark  295 

V.  Colegrave  183 

I'.  Gardner  314 

V.  Hudson  314 

V.  Ireland  291 

V.  Loomis  295 

V.  Losee  190 

V.  Mayo  57 

V.  Parks  ^90 

V.  Reeves  313 

V.  Stanford  129 

V.  Stevens  289 

V.  Stopherd  134 

V.  Wilkinson  295 

V.  Wood  310 

Jacobs  V.  Pollard  12 

James  v.  Morgan  215 

Jansen  v.  The  Heinrich  97 

January  v.  January  330 

Jaques  v.  Hulit  132 

Jarvis  v.  Brooks  128 

Jetieryes  v.  Legendra  278 

Jefferson  Branch  Bank  v.  Skelly       334 

Jefts  V.  York  109 

Jendwine  c  Slade  32 

Jenkins  v.  Hutchinson  ,  109 

.  V.  Tucker  200 

Jenness  v.  Parker  220 

Jennings  v.  Brown  223 

V.  IlundaU  51 


Jennison  v.  Stafford  172 

Jeremy  v.  Goochnian  193 

Jeter  v.  Glenn  151 

Johns  V.  Stratford  243 

Johnson  v.  Beardslee  142 

V.  Fall  239 

V.  Poster  206 

V.  Hudson  258,  259 

V.  Lines  71,  73 

V.  Ogilby  227 

V.  Pie  51,  52 

V.  Rowland  330 

Johnston  v.  Wabash  College  185 

Jones  V.  Andover  257 

V.  Ashburnham  176 

V.  Bailey  120.  122 

V.  Clarke  202 

V.  Crittenden  330 

V.  Darch  39 

V.  Fales  277 

V.  Lees  237 

V.  Le  Tombe  112 

V.  Littledale  UO 

V.  Phoenix  Bank  61 

V.  Richardson  140,  145 

V.  Ryde  31 

V.  Turner  27 

V.  Wilson  184 

Jones's  Devisees  v.  Carter  105 

Jons  V.  Perchard  244 

Judkins  v.  Walker  49 

Judson  V.  The  State  334 

Juliana,  The  100 

JuUo  V.  Ingalls  117 


K. 

Karthaus  v.  Ferrer 

Kay  V.  Duchess  de  Pienne 

Kaye  v.  Bolton 

Kayser  v.  Disher 

Keily  v.  Monck 

Keller  v.  Rhoads 

Kelley  v.  Hurlburt 

V.  Mayor,  &c.  of  Brooklyn 
Kellogg  V.  Larkin 

V.  Ricliards 
Kemp  V.  Carnley 

V.  Coffin 
Kendall  v.  Lee 
V.  May 
Kennebec  Purchase  v.  Tiffany 

Co.  V.   Augusta  Ins.   & 
Banking  Co. 
Kennedy  v.  Gouviea 
V.  McFadon 
V.  Ware 
Kennerly  v.  Martin 
Kepner  v.  Keefer 


120 
87 
241 
145 
232 
209 
137 
158 
235 
191 
120 
135 
148 
78 
295 

120 
110 
131 
182 
182 
266 


xvm 


LIST   OP   CASES   CITED. 


Page 


Kerrison  v.  Cole 
Kimball  v.  Tucker 
King  V.  Dedhain  Bank 
V.  King 
V.  Paddock 
V.  Sears 
V.  Upton 
V.  Weeden 
King,  The,  v.  Austrey,  Inhabts.  of 
V.  Bellringer 
V.  Dunne 
V.  Osbourne 
V.  Smith 
V.  Wharton 
Kingdon  v.  Nottle 
Kinleside  v.  Harrison 
Kirk  V.  Blurton 

V.  Gibbs 
Kintzing  v.  McElrath 
Kirkby  v.  Coles 
Kirkland  v.  Randon 
Kirkman  v.  Snodgrass 
Kirkpatrick  v.  Stainer 
Kirtiand  v.  Montgomery 
Kirton  v.  Elliott 
Kittredge  v.  Betton 
Kline  v.  Beebe 
u.  Guthart 
V.  L'Amoureux 
Knickerbacker  v.  Killmore 
Knight  V.  Bean 

V.  Wilder 
Knight's  Distributees  v.  Godbolt 
Knox  V.  McCall's  Adm'r 
Kramer  v.  Cook 
Kreiss  v.  Seligman 


Lacy  V.  Kynaston 
Laidlaw  v.  Organ 
Lamalere  v.  Caze 
Lamb  v.  Bunce 
V.  Smith 
Lambden  v.  Sharp 
Lanibe  v.  Keaston 
Lampleigh  v.  Braithwait 
Lampon  v.  Corke 
Lanison  v.  Schutt 
Landon  v.  Litchfield 
Lane  v.  Sewall 
Lang  V.  Fiske 
Lange  v.  Werk 
Langliani  v.  Hewitt 
Langton  v.  Hughes 
LanicT  v.  McCabe 
Lank  i-.  Kinder 
Lantry  v.  I'arks 
Lapsley  v.  Brashears 


250 

Lara  v.  Bird 

57 

6 

Lasell  V.  Tucker 

120, 

125 

329 

Latouche  v.  Whaley 

125 

296 

Lattimore  v.  Simmons 

149 

89,  90 

Lattin  v.  Vail 

219 

216 

Law  V.  Hodson 

259 

173 

Lawrence  v.  Clark 

131 

172 

V.  Fox 

209 

of    125 

Lawson  v.  Lovejoy 

63 

311 

Lay  ton  v.  Pearce 

315 

226 

Lea  V.  Barber 

252,  253 

311 

V.  Minne 

176 

285 

Leadbitter  v.  Farrow 

108 

296 

Leavitt  v.  Parks 

13 

150 

V.  Fletcher 

213 

27 

Lee  V.  Muggeridge 

181 

182 

123 

V.  Onstott 

122 

214 

Leech  v.  Davys 

242 

34 

Legat's  case 

206 

171 

Legh  V.  Legh 

187 

239 

Leland  v.  Douglass 

194 

136 

Lenthall  v.  Cooke 

244 

111 

Leonard  v.  Vredenburgh 

171 

166 

Lerned  v.  Johns 

108 

67,68 

V.  MorrUl 

295 

156 

Leverson  v.  Lane 

119 

60,  63 

Levet  V.  Hawes 

207 

148 

Levy  V.  Bank  of  United  States 

31 

71 

V.  Cohen 

18 

287 

V.  Pyne 

121 

144 

Lewis  V.  Armstrong 

116 

297 

V.  Brackenridge 

330 

It      141 

V.  Bright 

116 

142 

V.  Lee 

89 

214 

V.  Littlefield 

53 

270 

V.  Nicholson 

109 

V.  Simons 

179 

Lexington,  Lord  v.  Clarke 

252 

Life  &  Fire  Ins.  Co.  v.  Mechanic 

Fire  Ins.  Co. 

160 

808 

Lightfoot  V.  Tenant 

270 

34 

Liles  V.  Fleming 

90 

131 

Lilley  v.  Elwin 

8 

180 

Lilly  V.  Ewer 

278 

145 

Lincoln,  &c.  Bank  v.  Page 

277 

125 

V.  Richardson 

333 

294 

Lingard  v.  Bromley 

11 

194,  229 

Linn  v.  Ross 

213 

280 

Little  V.  Hazzard 

124 

140 

V.  Poole 

25f 

),  259 

326 

Littlefield  v.  Storey 

187 

244 

Littlejohn,  ex  parte 

253 

187 

Livermore  v.  Rand 

146 

235 

Liverpool  Water  Works  v. 

Atkin 

- 

86 

son 

281 

261,  270 

Livingston  v.  Rogers 

183 

119 

V.  Ten  Broeck 

310 

153 

Llewellen  v.  Llewellen 

9 

178 

8 

Lloyd  V.  Jewell 

219,  220 

330 

1  Locke  V.  Dane 

33 

2,337 

LIST   OP   CASES    CITED. 


XIX 


Lockwood  V.  Comstock 

Loder  v.  Cliesleyn 

Logwood  V.  Huntsville  Bank 

Lomax  v.  Spierin 

London,  Mayor,  &c.  of,  v.  Long 

Long  V.  Allen 

V.  Colburn 

V.  Dennis 
Longman  v.  Pole 
Longridge  v.  Dorville 
Lonsdale  v.  Brown 
Loomis  V.  IMarshall 
V.  Newhall 
Lord  V.  Parker 
Loring  v.  City  of  Boston 

V.  Steinnian 
Loubat  V.  Nourse 
Love's  case 
Low  V.  Peers 
Lowe  V.  Griffith 

V.  Penny 
Lowell  V.  Daniels 

V.  Robinson 
Lower  v.  Denton 
Lowery  v.  Drew 
Lowry  v.  Francis 
Loyd  V.  Lee 
Lucas  V.  Pitney 
Luce  V.  Carley 
Lucy  V.  Leviugton 

V.  Walrond 
Lufkin  V.  Mayall 
Lunt  V.  Holland 
Luscomb  V.  Barrett 
Lutwich  V.  Hussey 
Lyman  v.  Clarke 
Lynde  ?>.  Budd 
Lyon  V.  Malone 

V.  Williams 


M. 

Mabbett  v.  White 

Macbeath  v.  Haldimand 

Mackay  v.  Bloodgood 

MackereU  v.  Bachelor 

Mactier  v.  Frith 

Macy  V.  Combs 

Madison  Plank-Road  Co.  w.  'V 

town,  &c.  Plank-Road  Co. 
Magee  v.  The  Moss 
Macgregor,    Official    Manager 

Dover  &  Deal  Railway 
Mahony  v.  Kekule 
Major  V.  Hawkes 
Makepeace  v.  Bancroft 
Mallalieu  v.  Hodgson 
Mallan  v.  May 
Mann  v.  Chandler 


Page 


135 

Mann's  Appeal 

191 

187 

Mannin  v.  Ball 

79 

329 

Manson  v.  Felton 

96 

14:^ 

Mantel  v.  Gibbs 

27 

g       311 

Manuf.  &  Mechanics'  Bank  v 

Win- 

219 

ship 

123 

109 

Mapes  V.  Sidney 

175 

232 

Maples  V.  Wightman 

41 

126 

Mare  v.  Charles 

108 

177 

Marcum  v.  Hereford 

189 

175 

Markle  v.  Hatfield 

31 

117 

Marlett  v.  Jackman 

137 

253 

Marlow  v.  Pitfeild 

73 

115 

Marsh  v.  Gold 

13 

15 

V.  Hutchinson 

87 

90 

Marshall  v.  Baltimore  &  Ohio  Rail- 

129 

road  Co. 

230 

245 

V.  Rutton 

89 

231 

Marsha's  case 

174 

73 

Martin  v.  Baker 

150 

136 

V.  Mayo 

57 

88 

Martindale  v.  Fisher 

183 

298 

Mason  v.  Ramsey 

123 

131 

V.  Watkins 

228 

124 

V.  Wright 

71 

825 

Massie  v.  Watts 

295 

176 

Master,  &c.  of  St.  Cross  v. 

Lord 

158 

Howard  de  Walden 

276 

297 

Mather,  ex  parte 

265 

150 

Matthew  v.  Ollerton 

246 

144 

Matthews  v.  Hanbury 

222 

49 

Matthews's  case 

223,  224 

296 

Mauldin  v.  Branch  Bank 

119 

146 

Maurer  v.  Mitchell 

223 

174 

May  V.  Alvares 

172 

280 

Mayberry  v.  Bainton 

119 

62 

Mayfield  v.  Wadsley 

253 

133 

Maynard  v.  Tidball 

7 

110 

Maynell  o.  Mackallye 

175 

• 

Mayo  V.  Snow 

104 

McAllister  a.  HofTmaa 

239 

McArthur  v.  Bloom 

87 

McAuley  v.  Billinger 

185 

119 

McBride  u.  Hogan 

125 

112 

McCanley  v.  Brooks 

834 

125 

McCarroU  v.  Reardon 

184 

70 

McClintick  v.  Cummins 

27 

18 

McCrillis  v.  Bartlett 

96 

118 

V.  How 

74 

iter- 

McCuUoch  V.  Eagle  Ins.  Co. 

18 

159 

McCuIlough  V.  Sommerville 

125 

98 

McDonald  v.  Eggleston 

124 

of 

V.  McDonnell 

139 

212 

V.  Gray 

185 

110,  111 

McDowle's  case 

66 

135 

McFarland  v.  Mathis 

179 

295 

McGee  v.  Bast 

166 

271 

McGill's  Adm'r  v.  Burnett 

229 

233,  234 

McHenry  v.  Duffield 

109 

112 

Mclntyre  v.  Parks 

270 

LIST   OF   CASES   CITED. 


Page 

McKee  v.  Jndd  190 

V.  Manice  238 

McKinney  r.  Carroll  330 

McMinn  ;;.  Richmonds  74 

McNeil  V.  Quince's  Adm'rs  145 

McNitt  I'.  Clark  316 

McPlierson  v.  Pemberton  llti 

Mclloberts  v.  AVashburne  336 

Meacham  v.  Dow  230 

Mecliauics',  &c.  Bank  v.  Debolt  334 

Mecliilen  v.  Wallace  254 

Med  bury  v.  Watrous  49 

Melledge  v.  Boston  Iron  Co.      156,  157 

Mellen  v.  Wiiipple  211 

Melville  V.  Hay  den  283 

Mercer  Street,  case  of  303 
Merriam  v.  Cunningham                51,  73 

V.  Wolcott  31 

Merrit  v.  Pollys  135 

Merriweather  v.  Nixan  11 

Merrywether's  case  201 

Metcalf  V.  Bruin  283 

V.  Weld  102 

Michigan  State  Bank  v.  Hastings  334 
Middlebury  College  v.  Adm'rs   of 

Loomis  186 

V.  Chandler  69 

Middlesex  Maiuif  Co.  v.  Lawrence  281 


Miles  V.  Boyden 

145 

V.  Etteridge 

308 

Millar  v.  Turner 

304 

Millard  v.  Baldwin 

211 

Miller  v.  Bartlet 

118 

V.  Dorsey 

140 

V.  Goddard 

8 

V.  Hiaes 

119 

V.  Sims 

64 

V.  Stewart 

282 

Mills  V.  Bank  of  U.  States 

277 

V.  Graham 

53 

V.  Wyman                       • 

179 

V.  Wright 

292 

Milner  v.  Horton 

287 

Milton  V.  Mosher 

125 

Milward  v.  Clerk 

242 

Minet's  case 

171 

Minor  v.  Mechanics'  Bank    • 

284 

Mirick  v.  French 

185 

Mitchel  V.  Reynolds 

235 

Mitchell  V.  Cockburne 

266 

V.  Kingman 

78 

V.  Smith 

255 

V.  Warner 

151 

Moar  V.  Wright 

187 

Molton  V.  Cainroux 

80 

Monell  V.  Burns 

8 

Monk  V.  Cooper 

214 

Montgomery  v.  Kasson 

324 

V.  Lampton 

179 

Montjoys  v.  Holden 

119 

Moor  V.  Wilson 
Moore  u.  Appleton 

V.  Hardison 

V.  Williams 
Moran  v.  Palmer 
More  V.  Morecomb 
Morley  v.  Polhill 
Morrell  v.  Dickey 
Morrill  v.  Aden 
Morris  i».  Chapman 
Morrison  v.  Beckey 

V.  Langworthy 
Morse  v.  Bellows 

V.  Wheeler 
Mortara  v.  Hall 
Mosdel  V.  Middleton 
Mosher  v.  Allen 
Moss  V.  Averill 
V.  Oakley 
Motteran  v.  Motteran 
Moulsdale  v.  Binchall 
Mounsey  v.  Drake 
Mouys  V.  Leake 
Mowry  v.  Todd 
Mullen  V.  Gilkinson 
Mundy  v.  Monroe 
Munro  v.  Alaire 
Munt  V.  Shrewsbury   &c. 

Co. 
Murdock  v.  Kilbourn 
Murphy  v.  Crafts 
Musier  v.  Trumpbour 
Mussen  v.  Price 
Mussey  v.  Scott 
Musson  V.  Fales 
Myrtle  v.  Beaver 


N. 


109 

12 

141 

193 

127 

316 

151 

165,  156 

51 

216 

210 

297 

126 

59 

71 

248 

187 

159 

158 

89 

187 

212 

250 

187 

8 

335 

280 


Railroad 


158 
239 
133 
132 
316 
105 
240 
112 


Naish  V.  Tatlock 

197 

National  Bank  v.  Norton 

135 

Neally  v.  Greenough 

26 

Nelson  v.  Allen 

836 

Nerot  V.  Wallace 

212 

241 

Newby  v.  Wiltshire 

180 

Newcomb  v.  Worster 

28 

New  Hampshire  Mat.  F.  Ins 

Co. 

V.  Noyes 

72 

New  Jersey  v.  Wilson 

326 

Newman  v.  Newman 

250 

Newsom's  case 

173 

New  York  F.  Ins.  Co.  v.  Ely 

159 

Nichols  V.  Bertram 

328 

V.  Mudgett 

230 

V.  Raynbred 

21 

183 

i;.  Rugglcs 

255 

Nicholson  v.  Chapman 

185 

V.  Ricketts 

123 

Niedelot  v.  Wales 

213 

LIST   OF   CASES   CITED. 


XXJ 


Page 

Niell  V.  Morley 

80 

Nienicewicz  v.  Bartlett 

143 

Xightin^ale  v.  Withington 

39 

Nind  V.  Marsliall 

287 

Noble  V.  Cunniugham 

297 

V.  Ken  noway 

276 

V.  National  Discount  Co 

208 

Nobles  V.  Bates 

235 

Norfolk's  case 

243 

Norman  v.  Cole 

229 

Norris  v.  Abingdon  Academy 

327 

V.  School  District 

8 

V.  Vance 

52,61 

North  r.  Turner 

190 

Northampton  v.  Elwell 

206 

North  River  Ins.  Co.  i-.  Lawrence    160 

Northumberland,  Duke  of,  v. 

Er- 

rington 

285 

Norton  v.  Eastman 

283 

V.  Herron 

110 

V.  Simmes 

245,  249 

V.  Syms 

246,  247 

Noyes's  Ex'r  v.  Humphreys 

253 

Nymph,  The 

103 

0. 


Oakes  v.  Mitchell 

142 

Oatfield  V.  Waring 

200 

O'Callagan  v.  Thomond 

188 

Oelricks  u.  Ford 

111 

Offly  V.  Warde 

206 

Ogden  V.  Raymond 

109 

V.  Saunders 

322 

Oke's  case 

244 

O'Keson  v.  Barclay 

177 

Oldham  y  Bateman 

205,  207 

Oliver  v.  Houdlet 

55 

V.  Woodroffe 

74 

Oliverson  v.  Wood 

194 

Olmstead  v.  Beale 

8 

V.  Hill 

114 

Osborne  v.  Harper 

133 

i\  Humphrey 

320 

Ottley  V.  Brown 

265 

Overton  v.  Beavers 

154 

Owen  v.  jSIann 

78 

V.  Van  Uster 

123 

Owings's  Ex'r  v.  Owings 

210 

Owings  V.  Speed 

338 

Ozeas  V.  Johnson 

131 

Packard  v.  Richardson 
Paddock  i-.  Higgins 

V.  Strobridge 
Page  V.  Parker 


2,  172 

155 

35 

34 


Palmer  v.  Dodge  135 

V.  Stebbins  235 

V.  Stephens  109 

V.  Stevens  150 

Palo  Alto,  Tlie  18 

Paradine  v.  Jane  213 

Paris  V.  Stroud  69 

Parish  v.  Stone  184 

Park  V.  Wooten's  Ex'rs  137 

Parker  v.  Carter  172,  179 

V.  Coburn  144 

V.  Crane  194 

V.  Lewis  144 

V.  Macomber  135 

V.  Winlow  110 

Parks  V.  Ross  112 

Partridge  v.  Court  148 

Paschal  v.  Perez  324 

Pass  V.  McRae  187 

Patch  V.  Wheatland  124 

Paterson  v.  Grandasequi  108 

Pattee  v.  Greely  257 

Patterson  v.  Cobb  141 

V.  Pliilbrook  337 

Patton  V.  Nicholson  241 

Pawlet,  Town  of,  v.  Clark  325 

Payler  v.  Homersham  280 

Payne  v.  Cave  15 

V.  Smith  145 

Paynter  v.  Williams  180 

Pearce  v.  Madison,  &c.  Raikoad  Co.  116 

Pearle  v.  Unger  202 

Pearson  v.  Henry  139,  173 

V.  Humes  248 

V.  Thompson  191 

Peck  V.  Ellis  H 

V.  Fisher  128 

V.  Wheaton's  Heirs  141 

Pedan  v.  Robb's  Adm'r  155 

Peirce  v.  Ruley  185 

Pellecat  y^ngell  269 

Pen  V.  Glover  278 

Penfield  v.  Savage  154 

Pennell  v.  Alexander  111 

Penrose  v.  Currcn  53 

Pentz  V.  Stanton  108 

People,  The,  v.  Bishop  228 

V.  Hawley  341 

V.  Piatt  298,  330 

V.  River  Raisin,  &c., 

Railroad  Co.  160 
V.  Tioga  Common 

Pleas  190 

V.  Utica  Ins.  Co.  160 

Perkins  v.  Cummings  216 

V.  Eaton  239 

V.  Gay  177 

V.  Oilman  307 

V.  Hart  74 

V.  Lyman  237 


LIST   OP   CASES   CITED. 


Page 

Perrin  v.  Keene  135 

Perrine  v.  Cheeseman  3 

V.  Hankiuson  118 

Peru,   Inhab'ts  of,   v.   Inhab'ts    of 

Turner  15 

Pet  V-  Bridgwater  172 

Peters  v.  Fleming  73 

Peterson  v.  Edmonson  213 

Petrie  v.  Hannay  264 

Phelps  V.  Phelps  91 

V.  Worcester  72 

Phetteplace  v.  Steere  179 

Philips  V.  Lockhart  131 

V.  Sackford            •  175 

Phillips  V.  Bowers  302 

V.  Green  60 

V.  Stevens  213 

Phillips  Limerick  Academy  v.  Davis  186 

Phinney  v.  Watts  298 

Phipps  V.  Buckman  34 

Piatt  V.  Oliver  129 

Pickering  v.  Gunning  74 

Pierce  v.  Burnham  89 

V.  Cameron  122 

V.  Fuller  233 

V.  Woodward  235 

Pierce's  Adm'r  v.  Trigg's  Heirs       129 

Pierson  v.  Hooker  280 

V.  Steinmyer  117 

Pikard  v.  Cottels  216 

Pike  V.  Bacon  124 

V.  Dyke  324 

V.  Thomas  235 

Pilkington  v.  Green  227 

Pinchard  v.  Fowke  173 

I'indall's  Ex'rs  v.  North  Western 

Bank  31 

Pine  V.  Norish  2()7 
Pingry  v.  Washburn           230,  242,  329 

Pinnel's  case  191 
Piscataqua  Bridge  v.  New  Hi-mp- 

shire  Bridge  335 

Pitcher  v.  Barrows  137 

V.  Laycock  47 

Pitt  V.  Smith  82 

Pitts  V.  Mower  108 

V.  Waugh  126 
Plunkett   V.  Methodist   Episcopal 

Society  186 

Polk  V.  Buchanan  118 

Pollard  V.  Sciiaaffer  213 

Pool  V.  City  of  Boston  244 

V.  Young  330 

Pooly  V.  Gilberd  177 

Porter  v.  Bille  173 

V.  Bradley  90 

V.  Sawyer  239 

Portland  Bank  v.  Apthorp  334 

V.  Hyde  130 

Pott  t;.  Eyton  114 


Page 

Potter  V.  Greene  114 

V.  Hiscox  156 

V.  McCoy  125 

V.  Moses  118 

V.  Sanders  17 

V.  Taylor  151 

Potts  V.  Henderson  109 

Prather  v.  Clarke  89 

Pratt  V.  Humphrey  147 

Pray  v.  Pierce  307 

Prescott  V.  Norris  51 

V.  Wright  35 

Preston  v.  Strutton  135 

Price  V.  Alexander  124,  125 

V.  Easton  206,  208 

V.  Neal  31 

V.  Nixon  316 

Priest  V.  Parrot  224 

Procter  v.  Cooper  339 

Proctor  V.  Sears  58 

Proubart  v.  Knouth  73 

Providence  Bank  v.  Billings  334 

Purple  V.  Hudson  River  Railroad     190 

Purviance  v.  M'Clintee  114 


Q. 

Quackenboss  v.  Lansing 
Quick  V.  Copleston 


304 
172 


R. 

Rabone  v.  Williams  107 

Rackstraw  v.  Imber  132 

Rainsford  v.  Fenwick  70 

Rainwater  v.  Durham  70 

Rand  v.  Mather  253 

Randall  v.  Van  Vetchten  110 
Raudell  v.  Chesapeake  &c.  Canal  Co.  288 

V.  Trimen  109 
Rann  v.  Hughes                     3,  147,  162 

Ransom  v.  Jones  189 

Rapp  V.  Palmer  276 

Raymond  v.  Fitch  152 

V.  McMackin  120 
V.  Inhab'ts  of,  v.  Sawyer  154 

Rea  V.  Smith  244 

Reab  v.  Moor  8 

Readshaw  v.  Balders  250 

Rearsby  &  Cutler's  case  70 

Reay  v.  White  192 

Redding  v.  Hall  213 

Reed  v.  Batcholder  74 

V.  Pruyn  244 

Reed's  Petition  302 
Reeder  v.  Anderson's  Adm'r 

Reformed  Dutch  Church  v.  Brown  185 
Regents  of  University  v.  Hart         ^158 

V.  Williams  327 


LIST   OP    CASES   CITED. 


Page 

Eegina  v.  Winterbottora 

153 

Rehoboth  v.  Hunt 

324 

Reid  V.  Hibbard 

191 

Reilly  v.  Smith 

136 

Remington  v.  Cummings 

121 

Rex  V.  Allen 

889 

V.  Varlo 

811 

Reynard  v.  Brecknell 

102 

Reynolds  v.  Prosser 

172 

Rhea  v.  Rhenner 

86 

Rice  V.  Chute 

112 

V.  Goddard 

219 

V.  Peet 

78 

V.  Stone 

190 

Rich  V.  Rich 

287 

Richards  v.  Fisher 

131 

V.  Nightingale 

149 

Richardson  v.  Boright 

63 

V.  Duncan 

24 

V.  Linney 

156 

Riches  v.  Bridges 

165 

Riclimond  v.  Roberts 

243 

Richmond's  case 

143 

Ricketts  v.  Weaver 

151 

Rider  v.  Robbins 

200 

Riley  v.  Taber 

187 

Rippon  V.  Norton 

172 

Rising  V.  Patterson 

191 

Ritter's  Appeal 

141 

Robbins  v.  Eaton 

63 

V.  Potter 

223 

Roberts  v.  Knights 

99 

Robertson  v.  Lynch 

7 

V.  March 

185 

Robinson  v.  Bland 

269 

V.  Crowder 

120,  125 

V.  Curtis 

182 

V.  Gould 

27,  172 

,    V.  Green's  Adm'rs 

131 

V.  Reynolds 

86 

V.  Threadgill 

164 

V.  Williamson 

126 

Robison  v.  Gosnold 

9 

Robson  V.  Calze 

271 

Rock  River  Bank  v.  Sherwo 

od         158 

Rockwell  V.  Elkhoru  Bank 

158 

Roe  V.  Ashburner 

287 

V.  Tranmarr 

306 

V.  Vernon 

294 

Rogers  v.  Batchelor 

119 

V.  Goodwin 

312 

V.  Hurd 

41,  56 

V.  Price 

144 

V.  Reeves 

242 

V.  Rogers 

141 

V.  Spence 

190 

V.  Walker 

81 

V.  Weaver 

149 

Rollins  V.  Stevens 

119 

Rollison  V.  Hope 

187 

Rolls  V.  Yate 

Rood  V.  Jones 

Rose  V.  Daniel 
V.  Truax 

Ross  V.  Milne 

Root  V.  Bradley 

Rooth  V.  Quin 

Rosyer  v.  Langdale 

Routledge  v.  Grant 

Rubery  v.  Jervoise 
V.  Stevens 

Rundel  v.  Keeler 

Russel  V.  Lee 

Russell  V.  Coffin 
V.  Cook 
V.  De  Grand 

Rust  V.  Boston  Mill  Corp. 
V.  Gott 

Rutgers  v.  Lucet 

Ryan  v.  Terrington 


s. 


206 
172 
38 
230 
210 
143 
118 
176 
15,  19 
311 
145 
73 
75 
307 
177 
259 
301 
238 
166 
112 


Sacket  v.  Johnson 

155 

Sadler  v,  Paine 

205,  206 

Sage  V.  Ensign 

137 

Sainter  v.  Ferguson 

233 

Salter  v.  Ham 

118 

Samson  v.  Thornton 

171 

Sanders  v.  Plain's  Adm'rs 

153 

V.  Filley 

206 

V.  Robertson 

148 

Sandford  v.  Sandford 

206 

Sandhill  v.  Jenny 

194 

Sansom  v.  Bell 

283 

Sarah  Jane,  The 

101 

Saunders  o.  Hatterman 

34 

Savary  v.  Clements 

101 

Saward  v.  Anstey 

289 

Say's  Ex'rsj;.  Barnes 

156 

Schenuk  v.  Strong 

52 

Schnell  v.  Nell 

169 

Schnerr  v.  Lemp 

8 

Scholey  v.  Walton 

142 

School  District  v.  Dauchy 

213 

School    Trustees    of    Trenton  v. 

Bennett 

213 

Scott  V.  Bourdillion 

275 

V.  Colmesnil 

137 

V.  Gilmore 

216 

V.  Hancock 

143 

Scudamore  v.  Vandenstene 

206 

Seago  V.  Deane 

181 

Seaman  v.  Price 

169 

V.  Seaman 

177 

Seamen  of  Fair  American  v. 

Fair 

American  and  Captain 

100 

Seaver  v.  Phelps 

80 

Sedgwick  V.  Spicer 

243 

XXIV 


LIST   OF   CASES   CITED. 


Sedgwick  v.  Stanton 
Semple  v.  Pink 
Severance  v.  Kimball 
Shattuck  0.  Lawson 
Sliaw  V.  Boyd 

V.  Woodcock 
Shed  V.  Pierce 

Shedd  ',-.  Bank  of  Brattleboro' 
Sheffield  v.  Rise 
Shenk  v.  Mingle 

Siiepard  v.  Rhodes  -        170, 

Sheplierd  v.  Young 
Sheppard  v.  Gosnold 
Sherman  v.  Boyce 
Shewen  v.  Vanderhost 
Shields  v.  Fuller 
Shipton  V.  Tliornton 
Shirley  v.  Sankey 
Shove  I'.  Pincke 
Shrunk  v.   Schuylkill   Navigation 

Co. 
Sibley  v.  HoHen 
Sibree  v.  Tripp 
Sicklemore  v.  Thistleton 
Sigourney  v.  Munn  127, 

Sikes  L\  Work 
Sinmions  v.  Wilniott 
Sinims  v.  Baretbot's  Ex'rs 
Simonds  r.  Heard 
Sims  V.  Brutton 
Sjoerds  v.  Luscombe 
Skinner  v.  Dayton 
Slark  V.  Highgate  Archway  Co. 
Slater  v.  Lawson 
Slawson  r.  Loring 
Sleght  V.  Kliinelander 
Smalman  v.  Agborrow 
Smead    v.    Indianapolis,  &c.  Rail- 
road Co. 
Smith  V.  Ballou 

V.  Barrow 

V.  Burnham 

V.  Compton 

V.  Dyer 

V.  Gowdy 

V.  Hill 

V.  Jones 

V.  Kelley 

V.  Kerr 

V.  Lambert 

V.  Low 

V.  Lusher 

V.  Mapleback 

V.  Mayo 

V.  Mouteith 

V.  Oliphaut 

V.  Ferry 

V.  Roche 

V.  Sanborn 

V.  Sherman 


230 

Smith  V.  Sinclair 

219 

175 

V.  Slocomb 

302 

24 

V.  Smith                             150 

,239 

131 

V.  Sparrow 

256 

47 

V.  Stone 

126 

26 

V.  Townsend 

148 

308 

V.  Ware 

179 

121 

V.  Whildin 

244 

200 

V.  Whiting 

158 

223 

V.  Wright 

276 

182 

Smith's  Estate 

140 

140 

Smith's  Ex'r  v.  Garth 

118 

312 

Smyth  V.  Colshill 

248 

244 

Snevily  v.  Read 

182 

141 

Snow  V.  Inliab'ts  of  Ware 

8 

135 

Society  v.  New  Haven 

325 

122 

V.  Wheeler 

179 

289 

Somes  V.  Skinner 

156 

306 

Sommer  v.  Wilt 

191 

Southall  V.  Rigg 

178 

298 

South  Carolina  Bank  v.  Case 

123 

302 

Ins.  Co  V.  Smith 

281 

191 

Society  v.  Johnson 

281 

287 

Spence  v.  Rogers 

191 

129 

Spicer  v.  Hay  ward 

222 

132 

Spooner  v.  Brewster 

86 

180 

Spring  V.  Woodworth 

155 

27 

Springfield  Bank  v.  Merrick 

259 

110 

Squires  v.  Barber 

107 

121 

Stackpole  v.  Arnold                        4 

,108 

214 

Stadt  L\  Lill 

171 

124 

Stafford  v.  Bacon 

179 

157 

Stahlscmidt  v.  Lett 

141 

143 

Stanhop's  case 

194 

108 

Stanly's  Ex'r  v.  Hawkins 

112 

277 

Stannard  v.  Forbes 

286 

55 

Stanton's  case 

66 

Stanwood  v.  Stanwood 

91 

158 

Stark  V.  Parker 

8 

191 

Starr  v.  Robinson 

830 

133 

State,  The,  v.  Buffum 

28 

126 

V.  Canterbury 

297 

287 

V.  Cook 

154 

149 

V.  Gilmanton 

298 

14 

V.  Jones 

339 

121 

V.  Noyes 

355 

176 

V.  Phalen  &  Paine 

335 

63 

V.  Tombeckbee  Bank 

329 

124 

State  Bank  v.  Clietwood 

284 

145 

Stearns  v.  Barrett 

235 

60 

Stebbins  v.  Palmer 

149 

131 

V.  Smith                       140, 

147 

307 

Stedfast  r.  NicoU 

305 

67 

Steed  man  v.  Rose 

71 

177 

Steers  v.  Lashley                        265, 

266 

72 

Steinman  v.  Magnus 

192 

118 

Stephens  v.  Squire 

177 

223 

V.  White 

166 

315 

Sterling  v.  Sinnickson 

281 

149 

Stevens  v.  Brown 

335 

LIST   OF    CASES    CITED. 


XXV 


Stevenson  v.  Bruce  154 

Stewart  v.  Galloway,  Earl  of  229 
V.  Trustees  of  Hamilton 

College  186 

Stilk  V.  Meyrick  239 

St.  John  V.  St.  John's  Church  12 
St.  John's  College  v.  The  State        328 

Stone  V.  Dennis  214 

V.  Dennison  49,  76 

V.  Hooker  13 

V.  Wood  110 

Stoolfoos  V.  Jenkins  51 

Storer  v.  Freeman  297 

Story  V.  Johnson  60 

V.  Pery  71 

Stotesbury  v.  Smith  244 

Stoughton  V.  Day  281 

Stout  V.  Wren  246 

Strange  v.  Lee  282 

Stretton  v.  Busnash  88 

Strong  V.  Grannis  24 

V.  Tompkins  243 

St.  Saviour's  v.  Bostock  281 

Stuart  V.  Laird  312 

Sturges  V.  Crowninshield  1,  320,  322 

Stuyvesant ;'.  Hall  153 

Sugars  V.  Brinkworth  227,  244 

SuUivan  v.  Blackweli  156 

V.  Murray  148 

Sumner  v.  Brady  271 

V.  Hampson  129 

V.  Williams  139 

Surtees  v-  Hubbard  187 

Swan  V.  Stedman  _    124 

Swasey  v.  Vanderheyden's  Adm'r    74 

Sweany  v.  Hunter  240 

Sweat  V.  Hall  90 

Sweetser  v.  French  119 

V.  Mead  120,  125 

Swett  V.  Poor  228 

Swift  V.  Bennett  70 

V.  Clark  100 

Sydenham  &  Worlington's  case       194 


Taber  v.  Jenny  104 

Tabor  v.  Tabor  149 

Taft  u.  Stevens  149 

Tain  tor  ;;.  Prendergast  108 

Tallis  V.  Tallis  234 

Tallraadge  v.  Wallis  219 

Talniage  v.  Chapel  148 

Tanner  v.  Christian  110 
Tapley  v.  Butterfield                  119,  125 

Tappan  v.  Kimball  137 

Tasker  v.  Bartlett  125 
Tayloe  v.  Mercliants'  Fire  Ins.  Co.    18 

Taylor,  ex  parte  49 


Taylor  v.  Blanchard 
V.  Briggs 
V.  Croker 
V.  Patrick 
V.  Steamboat 
Tebbetts  v.  Estes 
Temple  v.  Seaver 
Templeton  v.  Bascom  147, 

Tenant  v.  Elliott 
Tench  v.  Koberts 
Ten  Eyck  v.  Vanderpoel 
Tenney  v.  Prince 
Terrett  v.  Taylor 
Terrill  v.  Richards 
Thacher  v.  Dinsmore 
Thayer  v.  Buffum 

V.  Hollis 
Theme  v.  Fuller 
Thomas's  case 
Thomas  v.  Bishop 
V.  Dike 
V.  Hawkes 
V.  Head 
V.  Pyke 
V.  Todd 
V.  Williams 
Thompson  v.  Armstrong 
V.  Farden 
V.  Lay 
V.  Leach 
V.  Linscott 
V.  Lockwood 
Thornborow  v.  Whitacre 
Thorne  v.  Deas 
Thorpe  v.  Thorpe 
Thurman  v.  Wells 
Thurston  v.  Percival 
Thweat's  Adm'r  v.  Jones 
Thwait  V.  Warren 
Tibbetls  v.  Ayer 
Tillotson  V.  Grapes 
V.  Millard 
Tinkler  v.  Prentice 
Tippets  V.  Walker 
Tombeckbee  Bank  v.  Dumell 
Tombs  V.  Painter 
Toplis  V.  Grane 
Touissaint  v.  Martinant 
Touteng  v.  Hubbard 
Towne  v.  Wiley 
Townsend  v.  Hunt 

V.  Townsend 
Tracy  v.  Talmage 
Train  v.  Gold 
Trask  v.  Duvall 
V.  Vinson 
Treford  v.  Holmes 
Tricket  v.  Mandlee 
Trigg  V.  Read 
Tripp  V.  Brownell 


234 
276 
39 
177 
18 
150 
131 
172 
263 
116 
147 
171 
325 
133 
154 
131 
140 
175 
207 
108 
49 
74 
88 
133 
31 
252 
189 
188 
58 
77 
58 
27 
215 
166 
280 
190 
7 

12 

U 

219 

219 

334 

250 

110 

122 

304 

12 

6 

340 

53 

194 

330 

270 

13 

6 

219 

173 

174 

177 

104 


XXVI 


LIST   OP   CASES   CITED. 


Tripp  V.  Vincent 

Tritton  v.  Foote 

Trott  V.  Wood 

Troughton  v.  Hill 

Trower  v.  Butts 

Trueman  v.  Hurst 

Trustees  of  Cliurch  in  Hanson  v. 

Stetson 
Trustees   of   Howard    College    v. 

Pace 
Tucker  v.  Barrow 
V.  Justices 
V.  McKee 
V.  Moreland 

V.  Woods  14,  19,  32, 

Tuckerman  v.  Hinkley 
V.  Newhall 
Tugwell  V.  Heyman 
Tullis  V.  Fridley 
Tullock  V.  Dunn 
Tuolumne    Redemption    Co.    v. 

Sedgwick 
Tunstall  u.  Pollard's  Adm'r 
Tupper  V.  Cadwell 
Turberville  v.  Whitehouse 
Turbeville  v.  Ryan 
Turnpike  Co.  v.  The  State 
Turner  v.  Evans 
V.  Harvey 
V.  Trisby 
V.  Vaughan 
Tuttle  V.  Love 
Tuxbury  v.  Miller 
Tweddle  r.  Atkinson  207, 

Tyler  v.  Young 
Tyson  v.  Thomas 


Page 
122 
311 
276 

84 
305 

74 

185 

209 

74 

112 

154 

60 

188 

258 

308 

144 

90 

142 

334 

141 

72 

72 

124 

335 

237 

35 

69 

222 

19 

241 

208 

219 

255 


u. 

Ulen  V.  Kittredge  173 

Underwood  v.  Stuyvesant  303 

V.  Waldron  185 

Union  Bank  v.  Clossey  284 

of   Georgetown    v. 

Geary  I77 

United  States  v.  Astley  126 

V.  Bainbridge  38,  64 

V.  Buford  189 

V.  Cantril  316 

V.  Kirkpatrick  281 

V.  Tingey  ii8 

United  States  Bank  v.  Binnej'  123 

University  v.  Foy  325 

Unvvin  v.  Wolseley  112 

Upliam  V.  Smith  3O7 

Urban  v.  Grimes  61 

Utica  Ins.  Co.  v.  Hunt  I.59 

V.  Kip  159 

V.  Scott  159 


V. 

Valde  V.  Levering 

Valentine  v.  Foster 

Vance  v.  Blair 
V.  Wells 

Vanderburgh  v.  Hull 

Van  Epps  v.  Harrison 

Vanhorn's  Lessee  v.  Harrison 

Van  Lew  v.  Parr 

Van  Marter  v.  Babcock 

Vassar  v.  Camp 

Vasse  V.  Smith 

Vaughan  v.  Hancock 
V.  Parr 

Vauxhall  Bridge  Co.  v.  Earl  Spen- 
cer 

Veasey  v.  Doton 

Veazie  v.  Hosmer 

Venning  v.  Leckie 

Vent  V.  Osgood 

Vernon  v.  Alsop 
V.  Keys 
V.  Manhattan  Co. 

Vertue  v.  East  Anglian  Railways 
Co. 

Vice  V.  Fleming 

Vickery  v.  Welch 

Vinton  V.  Peck 

Viser  v.  Bertrand 

Voorhees  v.  Wait 

Voorhies  v.  Voorhies 

Vose  V.  Handy 

Vullamy  v.  Noble 


w. 

Wade  V.  Colvert 

V.  Haycock 
Wadleigh  v.  Sutton 
Wagner  v.  White 
Wailing  v.  Toll 
Wain  V.  Warlters 
Wait  V.  Gibbs 
V.  Jones 
V.  Maxwell 
Waite  V.  Harper 
Wales  V.  Stetson 
Walker  v.  Bradley 

V.  City  of  Worcester 

V.  Hill 

V  McCulloch 

V.  Penry 

V.  Perkins 

V.  Rostron 

V.  Slicpardson 
Wallace  v.  Morss 
Wallace's  Lessee  v.  Lewis 
Wallis  V.  Day 


155 

179 
183 

182 

118 

219 

306 

219 

235 

18 

52,53 

253 

61 

230 

34 

8 

133 
49 

292 
34 

137 

188 
118 
237 
258 
182 
49 
61 
294 
138 


82 


213 

71 

2 

103 

216 

81 

241 

328 

149 

303 

149 

308 

338 

222 

208 

298 

51 

61 

235 


LIST   OP   CASES   CITED, 


XXVll 


Wallis  u.  Wallis 
Wallop  V.  Darby- 
Walter  V.  Bacon 

V.  Ross 
Warcop  V.  Morse 
Ward  V.  Byrne 
V.  Crotty 
V.  Lewis 
Warner  v.  Griswold 
Warren  v.  Batchelder 
v.Faff 
V.  Wheeler 
V.  Whitney 
Warren  Bank  v.  Parker 
Warwick  v.  Bruce 
Washburn  v.  Goodman 
Waters  v.  Bean 
V.  Lilley 
Watkins  v.  Baird 

V.  Halstead 
Watkinson  v.  Inglesby 
Watson  V.  Boylston 
V.  Dunlap 
V.  Fletcher 
V.  Turner 
Waugh  V.  Carver 
Way  V.  Foster 
Waymell  v.  Reed 
Wayne  v.  Sands 
Weak  V.  Escott 
Webb  V.  Brooke 
Webster  v.  Hunger 
V.  Webster 
V.  Woodford 
Weire  v.  City  of  Davenport 

V.  Mosher 
Welch  V.  Mandeville 
Weld  V.  Hornby 
Wennall  v.  Adney 
Wentworth  v.  Cox 

V.  Goodwin 
Wesleyan  Seminary  v.  Fisher 
West  V.  Moore 
Westerlo  v.  Evertson 
Westmoreland,  The 
Weston  V.  Barker 
V.  Mason 
West  Roxbury  v.  Stoddard 
Weymouth  v.  Babcock 
Whaley  i'.  Norton 
Whallon  v.  Kaufman 
Wharton  v.  Mackenzie 
Wheatley  v.  Low 
Wheatly  v.  Miscal 
Wheaton  v.  East 
Wheeler  v.  Nevins 
V.  Russell 
V.  Spencer 
Whitaker  v.  Gavit 
White  V.  Barber 


Page 

306     White  v.  Bluett 
290  V.  Buss 

337  V.  Dingley 

108  V.  Skinner 

208  V.  Tad  or 

234  V.  Wilson 

90    White's  Ex'r  v.  Commonwealth 
206     Whitehead  v.  Greetham 
121     Whiting  v.  Dewey 
210  V.  Sullivan 

141     Whitmarsh  v.  Hall 
187     Whitney  v.  Dutch 

179  V.  Slayton 

277     Whittenton  Mills  v.  Upton 

39     Whittingham  v.  Hill 
138     Whitton  v.  Smith 
182     Whitwell  v.  Johnson 
298     Whorwood  v.  Gybbons 

24     Why  wall  v.  Champion 
182     Wickens  v.  Evans 
192     Wigg  V.  Shuttleworth 
283     Wiggin  v.  Bush 
182  V.  Cumings 

116     Wiggins  v.  Adm'r  of  Lovering 

180  Wight  V.  Geer 
114     Wilbum  v.  Larkin 
257     Wilcox  V.  Howland 
260     Wilde  v.  Sheridan 

27     Wildey  v.  Collier 
292     Wilkinson  v.  Coverdale 
267  V.  Kitchin 

270    Wilks  V.  Back 
188     Willard  v.  Moulton 
78     Willcox  V.  Smith 
190     Williams  v.  Chaffin 
153  V.  Hathaway 

187  V.  Henshaw 

310  V.  Hodgson 

178  V.  Jones 

144  V.  Moor 

219  V.  Paul 

216     Williamson  v.  Watts 
51     Willing  V.  Peters 
131     Willis  V.  Dyson 
99  V.  Peckham 

209     Wilson  v.  Burr 
281  V.  Edmonds 

299  V.  Forbes 

192  V.  Hunter 

222  V.  Jordan 

287  V.  Kearse 

70  V.  Milner 

164,  165  V.  Whitehead 

49  V.  Zulueta 

61     Wing  V.  Mill 
105     Winkley  v.  Kaime 
259     Winslow  v.  Chiffelle 
239     Wintle  v.  Crowther 
190     Withnell  v.  Garthara 
305  I  Woart  v.  Winnick 


184 
269 
307 
109 
135 
239 
144 
164 
154 
6 
49 
42,  58 
237 
116 
71 
119 
277 
174 
71 
235 
250 
271 
134 
140 
256 
105 
26 
18 
229 
166 
229 
105 
289 
142 
139 
179 
131,  132 
122 
284 
74 
256 
74 
179,  182 
118 
240 
182 
200 
298 
124 
219 
48 
12 
117 
110 
180 
295 
128 
126 
310 
337 


XXVUl 


LIST   OF   CASES   CITED. 


Wolraven  i>.  Jones  288 

Wood  V.  Benson  252 

V.  Edwards  7 

V.  McCann  230 

V.  Pennell  113 

V.  Witherick  74 

Woodgate  v.  KnatchbuU  244 

Woodman  v.  Hubbard  257 

Woodruffs.  Corey  155 

Woodyard  v.  Dannock  287 

Worcester  v.  Eaton  29 

Worcester  Bank  v.  Reed  282 

Word  V.  Vance  51 

Worrall  v.  Munn  110 

Worten  v.  Howard  145 

Worthinoton  v.  Hylyer  295 

Wray  v.  Milestone  132 

Wright  V.  Arnold  156 

V.  Bigg  17 

V.  Follen  5 

V.  Moore  220 

V.  Russell  282,  283 

V.  Steele  57 

V.  Turner  8 


Wright  V.  Wright 
Wroth  V.  Johns 


z. 

Zabriskie  v.  Smith 
Zane's  Devisees  v.  Zane 
Zouch  V.  Parsons 


Page 

84 

289 


Yates  V.  Boen 

78 

V.  Foot 

238 

Yeatman  v.  Woods 

127 

Yeomans  v.  Chatterton 

241 

York  Bank's  Appeal 

122 

Young  V.  Adams 

31 

V.  Brick 

181 

V.  Hughes 

18S 

V.  Lorain 

154 

V.  Smith 

114 

V.  Timmins 

234 

Yundt  V.  Roberts 

216 

190 

177 

40 


LAW  OF  CONTEACTS. 


CHAPTER   I. 

OP   THE   DEFINITION   AND   DIVISION   OP   CONTRACTS  ;    AND    OP   THE 
ASSENT   OP   THE   PARTIES   THERETO. 

The  most  concise  definition  of  a  contract,  to  be  found  in 
the  books,  is  that  given  by  the  late  Chief  Justice  Marshall,  in 
the  case  of  Sturges  v.  Crowninshield,  4  Wheat.  197  :  "  A  con- 
tract is  an  agreement,  in  which  a  party  undertakes  to  do,  or 
not  to  do,  a  particular  thing."  Blackstone's  definition  is,  "  an 
agreement,  upon  sufficient  consideration,  to  do,  or  not  to 
do,  a  particular  thing."  2  Bl.  Com.  446.  Most  other  writers 
not  only  include  the  consideration  of  a  contract  in  its  defini- 
tion, but  also  term  it  a  covenant  or  bargain  between  two  or 
more  parties.  Termes  de  la  Ley.  Powell  on  Con.  (Introd.) 
vi.  1  Burn's  Law  Diet.  As,  however,  the  word  contract, 
agreement,  or  bargain,  ex  vi  termini^  imports  more  than  one 
party,  it  is  tautology,  in  a  professed  definition,  to  speak  of  an 
agreement  "  between  two  or  more  parties." 

The  word  "  covenant,"  used  in  many  definitions  given  of 
a  contract,  is  objectionable.  Strictly  and  technically  taken, 
as  all  words,  employed  in  a  definition  of  a  subject  of  sci- 
ence, should  be,  a  covenant  is  a  contract  under  seal,  and  is 
therefore  improperly  adopted  in  reference  to  contracts  gener- 
ically;  because  it  embraces  only  one  specific  class  of  con- 
tracts. 

The  word  "  agreement  "  is  most  generally  used,  in  the  older 

books,  to  denote  what  is  now  more  usually  termed  a  contract. 

The  introduction  of  Contract  into  the  titles  of  the  common 

law  is  of  modern  date.     Agreement  is  "  the  union  of  two  or 

1 


2  LAW   OF    CONTRACTS. 

more  minds  in  a  thing  done  or  to  be  done." (a)  In  the  lan- 
guage of  some  of  the  old  writers,  it  is  called  "  a  coupling  or 
knitting  together  of  minds." (6) 

It  is  provided  by  the  English  and  American  statutes  of 
frauds,  that  no  person  shall  be  charged  on  certain  enumerated 
promises,  unless  the  agreement,  on  which  the  action  is 
brought,  shall  be  in  writing.  In  England,  it  is  held  that  the 
word  "  agreement "  signifies  a  contract  on  consideration,  and 
therefore  that  the  consideration  of  the  promise  must  be  shown 
in  writing.  Wain  v.  Warlters,  5  East,  10,  and  subsequent 
cases.  If  this  be  correct,  Blackstone's  definition  of  a  contract 
is  tautological,  and  Marshall's  should  be  preferred.  More  of 
our  state  courts  have  adopted,  than  have  rejected,  this  techni- 
cal import  of  "  agreement."  See  Browne  on  St.  of  Frauds, 
§  391.  In  Massachusetts,  it  is  provided  by  statute  that  the 
consideration  of  the  promise  needs  not  to  be  set  forth  or  ex- 
pressed in  writing.  Rev.  Sts.  c.  74,  §  2,  and  Gen.  Sts.  c.  105, 
§  2.  The  supreme  court  had  previously  so  held.  Packard  v. 
Richardson,  17  Mass.  122. 

If  the  word  agreement  does  not  import  a  contract  on  con- 
sideration, is  Blackstone's  definition,  or  Marshall's,  the  most 
accurate  ?  Both  these  definitions,  as  well  as  those  of  the 
other  writers  just  cited,  include  all  contracts,  the  whole  ge- 
nus, whether  of  record,  under  seal,  or  by  parol,  recognizances, 
grants  of  land,  bonds,  promissory  notes,  or  mere  oral  prom- 
ises. To  the  validity  of  a  simple  contract,  one  not  under 
seal,  a  legal  and  sufficient  consideration  is,  by  the  common 
law,  indispensable.  But  a  contract  by  specialty  (under  seal) 
is  valid  without  consideration,  except  an  obligation  in  par- 
tial restraint  of  trade ;  or,  which  for  the  present  purpose 
amounts  to  the  same  thing,  it  imports  a  consideration,  which 
the  party  is  estopped  to  deny.(c)     A  fortiori  is  this  true  of 

(a)  Plowd.  17.    Com.  Dig.  Agreement,  A.  {h)  Shep.  Epit.  89. 

(c)  "  A  consideration  is  necessary  to  the  validity  of  all  contracts  and 
agreements  not  under  seal,"  &c. ;  2  Kent  Com.  (1st  ed.)  365  ;  1  Comyn  on 
Contracts,  (1st  ed.)  13.  See  also  Plowd.  308.  "  A  mere  voluntary  bond, 
given  without  any  consideration,  is  good."  "  A  mere  Avant  of  consideration 
is  not  sulFicient  to  avoid  a  bond."  By  Parker  and  Sewall,  Js.  2  Mass.  161, 
163.    By  Lord  Kenyon,  7  T.  R.  477.    By  Sir  J.  Jekyll,  3  P.  W.  222. 


DEFINITION.  3 

contracts  of  record.  Blackstone's  definition,  therefore,  em- 
braces all  simple  contracts,  and,  as  to  them,  is  accurate.  But 
as  to  those  contracts  which  are  valid  without  a  considera- 
tion, or  import  a  consideration  not  to  be  denied,  it  is  not  accu- 
rate. Marshall's  definition  covers  this  latter  class  of  contracts, 
and  would  seem  to  be  sufficiently  correct  as  to  the  former. 
For  in  defining  a  contract,  or  any  thing  else,  generically,  it  is 
not  merely  unnecessary,  but  is  improper,  to  include  all  the 
incidents  and  qualities  that  appertain  to  the  subject. 

Some  contracts  are  required  to  be  written  ;  others  need  not 
to  be  reduced  to  writing.  Some  require  a  consideration,  or  a 
seal,  to  support  them  ;  others  do  not.  In  a  general  definition, 
therefore,  it  is  not  perceived  why  a  consideration  which  forms 
a  constituent  part  of  only  one  species  of  contracts  should  be 
included,  in  order  to  render  it  complete.  Why  should  not 
writing  and  sealing,  which  are  essential  to  the  validity  of 
certain   species   of   contracts,   be   also   included,  with    equal 


reason 


? 


The  genus  not  only  admits,  but  requires,  a  diflferent  defini- 
tion from  that  which  is  proper  for  the  several  species.  A  sim- 
ple contract  has  its  appropriate  definition  ;  and,  in  that  defi- 
nition, a  consideration  is  to  be  included.  Blackstone  has 
defined  it  with  brevity  and  clearness-,  in  his  attempt  to  define 
contracts  generally.  A  contract  by  specialty  requires  a  differ- 
ent definition.  And  a  contract,  in  its  broad  generic  sense,  is  to 
be  defined  differently  from  either  of  its  species  ;  and  this  has 
been  done,  with  singular  precision  and  exactness,  in  the  words 
first  quoted  from  the  late  chief  justice  of  the  United  States. 

Contracts  may  be  divided  into  three  classes,  namely  :  1. 
Simple,  or  parol  contracts ;  2.  Specialties,  or  contracts  under 
seal ;  and,  3.  Contracts  of  record. 

All  contracts,  not  of  record,  are  distinguished  by  the  com- 
mon law  into  agreements  by  specialty,  and  agreements  by 
parol.  There  is  no  such  third  class  as  contracts  in  writing. 
If  they  be  merely  written  and  not  specialties,  they  are  parol.(a) 
The   rules  of   evidence  are  not  the  same,  when  applied  to 

(a)  Eann  v.  Hughes,  7  T.  R.  351,  note.  Ballard  v.  Walker,  3  Johns.  Cas. 
65.    Perriae  V.  Cheeseman,  6  Halst.  1 74.     9  Mees.  &  Welsh.  92. 


4  ,    LAW   OF    CONTRACTS. 

written  and  unwritten  contracts ;  and,  in  the  discussion  of  a 
question  of  evidence,  the  late  Chief  Justice  Parker  (of  Massa- 
chusetts) says,  "  there  are  three  classes  of  contracts,  viz. : 
specialties,  written  contracts  not  under  seal,  and  parol  or 
verbal  contracts."  (a)  So  far  as  this  remark  relates  to  the 
immediate  point  before  the  court,  it  is  doubtless  correct ;  but 
as  it  regards  the  artificial  classification  of  contracts,  it  is  at 
variance  with  the  authorities. 

Attention  will  here  be  directed  chiefly  to  contracts  not  under 
seal,  which,  embracing  as  they  do  a  great  part  of  the  business 
of  every  man's  life,  and  furnishing  a  large  proportion  of  all 
the  cases  litigated  in  our  courts,  constitute  a  very  important 
branch  of  the  law.  Many  of  the  principles,  however,  which 
govern  this  division  of  contracts,  are  equally  applicable  to  the 
others.  But  before  proceeding  to  state  the  principles  of  the 
law  of  contracts,  it  will  be  useful  to  take  notice  of  the  dis- 
tinctions constantly  recurring  in  the  books,  between  express 
and  implied  contracts,  and  executory  and  executed  con-. 
tracts. 

The  first  of  these  distinctions  obtains  chiefly,  though  not 
exclusively,  in  simple  contracts.  An  express  contract  is  one 
which  is  actually  and  formally  made,  wherein  the  parties  stip- 
ulate in  positive  terms  what  is  to  be  done  or  omitted.  An 
implied  contract  is  not  thus  actually  and  formally  made,  but 
is  inferred  fi*om  the  conduct,  situation,  or  mutual  relations  of 
the  parties,  and  enforced  by  the  law  on  the  ground  of  justice ; 
to  compel  the  performance  of  a  legal  and  moral  duty :  (b) 
as,  where  one  man  sends  to  the  shop  of  another  for  articles 
of  food  or  clothing,  or  employs  another  to  labor  for  him  or  to 
render  him  other  services,  or  where  a  guest  enters  an  inn  and 
takes  refreshment  or  lodging.  In  these  and  numberless  sim- 
ilar cases,  though  nothing  is  stipulated  concerning  price  or 

(a)  Stackpole  v.  Arnold,  11  Mass.  30. 

(b)  "  A  great  mass  of  human  transactions  depends  upon  implied  contracts, 
upon  contracts  which  are  not  written,  but  which  grow  out  of  the  acts  of 
the  parties.  In  such  cases,  the  parties  arc  supposed  to  have  made  those  stip- 
ulations which,  as  honest,  fair,  and  just  men,  they  ought  to  have  made."  By 
Marshall,  C.  J.,  12  Wheat.  341. 


EXPRESS  AND   IMPLIED.  5 

payment,  the  law  is  said  to  imply  a  contract  and  a  promise 
to  pay  a  reasonable  sum  for  the  articles,  refreshments,  or 
services  received.  Finch's  Law,  181.  So,  if  one  has  an- 
other's money,  which  in  equity  and  good  conscience  he  ought 
to  restore,  the  law  is  said  to  imply  a  promise  to  restore  it. 
So,  too,  if  a  man  undertakes  any  trust,  office,  or  employment, 
the  law  raises  a  promise  on  his  part,  to  perform  his  undertak- 
ing with  integrity,  diligence,  and  skill ;  and,  if  he  injures  his 
employer  by  a  want  of  either  of  these  qualities,  he  is  liable 
to  an  action  on  his  implied  contract,  for  reparation. (a)  And 
in  England  it  was  recently  held,  (Chief  Justice  Cockburn  dis- 
senting,) that  when  one  contracts  as  agent,  in  the  name  of  a 
principal,  he  impliedly  contracts  that  he  has  the  authority  of 
the  alleged  principal,  and  that,  if  he  has  not,  he  is  liable  to 
an  action  on  such  implied  contract.(6) 

There  are  also  certain  positive  obligations  imposed  by  law, 
where  there  is  no  antecedent  moral  duty ;  and  here,  in  many 
instances,  a  contract  or  promise  is  inferred  to  fulfil  those  obli- 
gations. Thus,  in  some  of  the  states,  taxes  may  be  collected 
by  suit,  on  a  promise  implied  by  law  to  pay  the  collector.  In 
Massachusetts,  and  in  some  of  the  other  states,  towns  are 
under  an  obligation  imposed  by  statute,  to  relieve  and  sup- 
port poor  persons,  and  to  reimburse  expenses  incurred  by 
other  towns,  in  furnishing  such  relief  to  those  who  have  fallen 
into  distress,  where  they  have  not  a  legal  settlement ;  and 
may  be  compelled,  in  an  action  on  an  implied  promise,  to 
reimburse  such  expenses  to  other  towns,  and  to  individuals 
of  their  own  body.(c) 

In  sound  sense,  divested  of  fiction  and  technicality,  the 
only  true  ground,  on  which  an  action  upon  what  is  called  an 
implied  contract  can  be  maintained,  is  that  of  justice,  duty, 

(a)  1  Comyn  on  Contracts,  (1st  ed.)  6. 

(b)  Wright  V.  Follen,  7  El.  &  Bl.  301  and  8  El.  &  Bl.  647. 

(c)  In  the  civil  law,  those  contracts  which  correspond  to  the  implied  con- 
tracts of  the  common  law,  are  denominated  ohligationes  quasi  ex  contractu, 
and  Heineccius  denies  that  they  are  founded  on  contract.  El.  Jur.  sec.  ord. 
Inst.  lib.  iii.  tit.  14,  28.  Dictata,  ib. ;  Recitationes,  ib.  Most  civilians,  how- 
ever, like  the  common  lawyers,  derive  them  ex  consensu  Jicto  vel  prcesumpto. 
Vinnius,  in  his  commentary  on  the  Institutes,  denies  it.    Lib.  iii.  tit.  28. 


t)  LAW   OP   CONTRACTS. 

and  legal  obligation.  But,  if  the  substance  be  secured,  the 
form  of  obtaining  it  is  of  little  comparative  importance,  pro- 
vided it  be,  as  in  this  instance,  simple  and  direct,  and  not 
complicated,  circuitous,  and  troublesome. 

It  is  a  general  rule,  that  a  contract  shall  not  be  implied, 
where  an  express  one  is  made :  Expressmn  facit  cessare  taci- 
tiim.{a)  Thus,  where  one  became  surety  for  his  neighbor  for 
money  borrowed  of  a  third  person,  and  took  a  bond  of  indem- 
nity from  the  principal  debtor,  and,  on  being  compelled  to  pay 
the  money,  brought  an  action  against  the  principal  on  the 
implied  promise,  which  the  law  raises  in  such  cases,  to  reim- 
burse the  surety,  it  was  held,  that  as  he  had  taken  a  bond, 
which  was  an  express  contract,  he  must  resort  to  that  alone 
for  indemnity.(^)  So,  where  the  hirer  of  a  vessel,  under  a 
charter-party,  in  which  the  owner  covenanted  that  the  vessel 
should  be  tight,  strong,  &c.,  sued  the  owner,  on  an  implied 
contract,  for  reimbursement  of  expenses  incurred  for  neces- 
sary repairs  made  during  the  voyage,  it  was  held,  that  the 
only  remedy  was  on  the  covenant  expressed  in  the  charter- 
party,  (c) 

In  both  these  cases,  the  express  contract  was  under  seal, 
and  the  remedy  thereon  was  an  action  of  debt  or  covenant ; 
whereas  the  remedy  usually  adopted,  in  cases  of  implied  con- 
tract, is  the  action  of  assumpsit ;  and  it  is  a  legal  maxim, 
that  the  law  will  not  raise  an  assumpsit  where  the  party 
resorts  to  a  higher  security.  This,  however,  is  not  the  ground 
on  which  the  first  mentioned  case  was  decided.  The  court 
proceeded  on  the  principle  (as  expressed  by  BuUer,  J.),  that 
"  promises  in  law  exist  only  where  there  is  no  express  stipu- 
lation between  the  parties." 

In  other  cases,  where  the  express  promise  was  of  the  same 
and  not  a  higher  nature  than  an  implied  one,  the  same  doc- 
trine has  been  constantly  applied.  Thus,  a  plaintiff'  cannot 
recover  on  an  implied  contract  for  goods  delivered,  when  there 

(a)  Toussaint  v.  Martimiant,  2  T.  R.  105.    Whiting  v.  Sullivan,  7  Mass. 
107.     Trask  i;.  Duvall,  4  Wash.  C.  C.  Rep.  185. 

(b)  2  T.  R.  100. 

(c)  Kimball  v.  TiickiT,  10  Mass.  19G. 


IMPLIED.  i 

is  an  existing  express  contract,  in  part  performance  of  which 
the  goods  were  delivered.(a)  Indeed,  it  is  a  familiar  rule,  that 
while  an  express  contract  is  still  open,  a  party  cannot  resort 
to  an  implied  contract. (6) 

To  this  rule,  that  promises  in  law  (as  implied  promises  are 
often  called)  do  not  exist  where  there  are  express  stipulations, 
there  are  some  exceptions.  For  example,  if  the  terms  of  an* 
express  agreement  have  been  performed,  so  as  to  leave  a  mere 
simple  debt  or  duty  between  the  parties,  the  plaintiff  may 
recover  on  the  implied  contract ;  (c)  so,  where  an  express 
promise  contains  nothing  more  than  the  law  will  imply,  an 
action  may  be  sustained  on  the  implied  promise  ;  (d)  when 
both  parties  have  departed  from  the  special  agreement,  the 
law  will  raise  an  implied  one  ;  (e)  where  an  express  contract 
is  void,  on  account  of  illegal  consideration,  a  promise  may  be 
implied  to  pay  what  was  justly  due  before  the  illegal  agree- 
ment was  made.(/)  And  when  a  party  has  failed  to  per- 
form his  express  contract,  according  to  its  terms,  but  has  per- 
formed it  defectively,  and  cannot  maintain  an  action  thereon, 
yet  if  he  has  acted  in  good  faith  he  may  recover  of  the  other 
party,  on  an  implied  contract,  the  amount  of  the  benefit,  if 
any,  which  that  party  has  received.(jg')    But  if  the  failure  to 

(a)  Wood  V.  Edwards,  19  Johns.  205.  See  also  Duncan  v.  KiefFer,  3  Bia- 
ney,  126.     Robertson  v.  Lynch,  18  Johns.  456. 

(6)  Bui.  N.  P.  139.     1  Doug.  23.     2  East,  145. 

(c)  Gordon  v.  Martin,  Fitzgibbon,  303.  This  is  one  of  the  earliest  cases 
on  the  subject,  and  was  thus :  The  defendant  wrote  to  the  plaintiff,  request- 
ing him  to  perform  certain  services,  and  promising  to  pay  him  therefor,  on 
performance.  Instead  of  suing  the  defendant  on  the  special  promise,  and 
setting  it  forth  in  the  declaration,  the  plaintiff  sued  him  in  general  indebita- 
tus assumpsit,  for  services  rendered  at  his  request,  and  the  action  was  sus- 
tained. This  is  now  a  very  usual  course.  Guy  v.  Gower,  2  Marsh.  275. 
Bank  V.  Patterson,  7  Cranch,  299.     Maynard  v.  Tidball,  2  Wis.  34. 

(f/)  Gibbs  V.  Bryant,  1  Pick.  119,  This  was  the  case  of  a  surety,  who  had 
a  written  (not  sealed)  promise  of  indemnity  from  the  principal,  and  sued  on 
the  implied  promise.     See  also  Cornwall  v.  Gould,  4  Pick.  444. 

(e)  Goodrich  v.  Lafflm,  1  Pick.  57.     12  Mod.  509,  by  Powell,  J. 

(/)  Thurston  v.  Percival,  1  Pick.  415. 

(g)  Farnsworth  v.  Garrard,  1  Campb.  38.  Chapel  v.  Hickes,  2  Crompt. 
&  Mees.  214  and  4  Tyrw.  43.     Baillie  v.  Kell,  6  Scott,  398  and  4  Bing.  N. 


8  LAW   OF   CONTRACTS. 

perform  the  express  contract  be  intentional,  it  is  such  bad  faith 
that  he  can  recover  nothing.(a)  Hence,  when  one  engages  to 
perform  service  for  another  for  a  year  or  other  definite  time, 
for  a  gross  sum  for  the  whole  time,  and  he  leaves  the  service 
without  the  other's  consent  or  any  justifiable  cause,  he  can 
recover  nothing  for  the  service  which  he  rendered.  Such  are 
all  the  known  decisions,  except  that  of  the  court  of  New 
Hampshire,  in  Britton  v.  Turner,  6  N.  Hamp.  481.(6) 

"  As  the  law  will  not  generally  imply  a  promise,  where  there 
is  an  express  promise,  so  the  law  will  not  imply  a  promise  of 
any  person,  against  his  own  express  declaration  ;  because  such 
declaration  is  repugnant  to  any  implication  of  a  promise."  (c) 
This,  however,  can  be  true  only  where  there  is  no  legal  duty 
paramount  to  the  will  of  the  party  making  the  negative 
declaration.  For  where  such  duty  exists,  a  promise  will  be 
implied,  even  against  the  party's  strongest  protestations  ; 
as  in  the  cases  of  taxes,  and  claims  for  relieving  paupers, 
before  mentioned ;  so  if  a  husband  wrongfully  expel  his  wife 
from  his  house,  and  forbid  all  persons  to  trust  her  on  his  ac- 
count, declaring  that  he  will  not  pay  for  any  thing  that  is 
furnished  to  her,  the  law,  notwithstanding  these  express 
declarations,  implies  a  promise,  on  his  part,  to  pay  for  the 
supplies  which  any  other  person   provides  for  her  necessary 

R,  652.  1  Archb.  IST.  P.  (Amer.  ed.)  255.  Hayward  v.  Leonard,  7  Pick.  181. 
Snow  V.  Inhabitants  of  Ware,  13  Met.  42.  Gleason  v.  Smith,  9  Cash.  486. 
Veazie  v.  Hosmer,  11  Gray,  396.  Cardell  v.  Bridge,  9  Allen,  355.  Norris 
V.  School  District,  3  Fairf.  293.  Wadleigh  v.  Sutton,  6  N.  Hamp.  15.  Gil- 
man  V.  Hall,  11  Verm.  510.     Gazzam  v.  Kirby,  8  Porter,  256. 

(a)  Wade  v.  Haycock,  25  Penn.  State  Rep.  382.  See  Davy  v.  Cracknell, 
1  Post.  &  Finl.  59. 

(b)  Lilley  v.  Elwin,  11  Ad.  &  El.  N.  S.  752.  Roscoe  on  Ev.  (10th  ed.) 
350.  Stark  v.  Parker,  2  Pick.  267.  Olmstead  v.  Beale,^19  Pick.  528.  Davis 
V.  INIaxwell,  12  Met.  286.  Miller  v.  Goddard,  34  Maine,  102.  Mullen  v.  Gil- 
kinson,  19  Verm.  503.  Reab  v.  Moor,  19  Johns.  337.  Lantry  v.  Parks,  8 
Cowen,  63.  Monell  v.  Burns,  4  Denio,  121.  Eldridge  v.  Rowe,  2  Gilman, 
92.  Schnerr  v.  Lemp,  19  Missouri,  40.  Wright  v.  Turner,  1  Stew.  29. 
Hutchinson  v.  Wetmore,  2  Cal.  310.  It  will  be  seen  hereafter  that  infants 
are  exempted  from  this  rule. 

(c)  By  Parsons,  C.  J.  7  Mass.  109. 


IMPLIED.  9 

support ;  (a)  and  so  (in  this  country)  of  a  father,  who  wrong- 
fully discards  a  minor  child.  (6) 

In  these  instances,  it  is  manifestly  only  by  a  fiction,  that  a 
contract  or  promise  is  implied.  And,  indeed,  the  whole  doc- 
trine of  implied  contracts,  in  all  their  varieties,  seems  to  be 
merely  artificial  and  imaginary.  But  in  the  present  state  of 
the  law,  it  is  necessary,  for  the  sake  of  legal  conformity,  to 
adopt  this  phraseology.  In  a  great  majority  of  cases,  which 
occur  under  this  head,  there  is,  in  England,  no  safe  legal 
remedy,  except  the  action  of  assumpsit,  in  which  a  promise 
and  the  breach  thereof  are  required  to  be  alleged,  although 
the  defendant  in  fact  never  made  any  promise,  but  always 
denied  his  liability,  and  expressly  refused  either  to  pay,  or  to 
promise  payment. 

There  are,  indeed,  some  cases,  in  which  a  party  may,  at 
his  election,  regard  his  injury  as  a  breach  of  contract,  or  as 
a  tort,  and  may  adopt  the  remedy  appropriate  to  the  alterna- 
tive which  he  selects.  Such  cases,  however,  are  not  numerous ; 
and  when,  they  occur,  there  is  no  necessity  to  resort  to  an  im- 
plied contract,  as  there  is  another  more  apt  course,  which  the 
party  may  pursue,  with  assurance  of  obtaining  legal  redress. 

The  action  of  debt,  in  which  it  is  not  necessary  to  aver  a 
promise,  is  often  concurrent  with  that  of  assumpsit  on  implied 
promises.  But  in  England  the  defendant  was  formerly  per- 
mitted to  wage  his  law,  in  an  action  of  debt  on  simple  con- 
tract, and  it  was  to  avoid  this  evil  that  assumpsit  was  there 
substituted,  and  the  doctrine  of  implied  promises,  if  not  first 
introduced,  was  greatly  extended,  (c)  And  though  in  most 
parts,  if  not  the  whole  of  this  country,  wager  of  law  has  never 
been  allowed,  yet  we  have  adopted  the  English  remedy  of 
assumpsit,  and  the  English  doctrine  of  implied  contracts. 

If  a  new  Registrum  Brevium  were  now  to  be  compiled,  and 
new  forms  of  setting  forth  causes  of  action  were  devised,  we 

(a)  Robison  v.  Gosnold,  6  Mod.  171.  Harris  v.  Morris,  4  Esp.  R.  41.  4 
Bur.  2178.    4  Cush.  475. 

(b)  13  Johns.  480.     See  also  16  Mass.  31.    3  Day,  37.    2  Cush.  352. 

(c)  3  Reeves'  Hist,  of  English  Law,  (3d  ed.)  245. 


10  LAW   OF   CONTRACTS. 

should  probably  adapt  them  to  the  truth  of  the  case,  and  forego 
the  fictions,  that,  at  present,  so  extensively  prevail. 

Indeed,  it  was  not  without  hesitation  and  resistance,  that 
this  doctrine  of  implied  promises  found  admittance  into  the 
English  law.  The  courts  were  slow  and  loath  to  sanction  it. 
As  late  as  the  11th  year  of  William  III.,  Lord  Holt  asserted 
from  the  bench,  that  the  notion  of  promises  in  law  was  a 
metaphysical  notion ;  that  the  law  made  no  promises  but 
where  there  was  a  promise  of  the  party ;  [a)  and  in  the  third 
of  Anne,  he  said,  "  there  is  no  such  thing  as  a  promise  in 
law."  (b)  The  same  great  judge  also  pronounced  him  to  be 
a  bold  man,  who  first  ventured  on  a  general  count  in  indebi- 
tatus assumpsit,  (c) 

It  was  not  until  the  latter  part  of  the  last  century  (long 
after  implied  promises  had  been  recognized  in  divers  other 
instances),  that  a  surety,  who  had  paid  the  debt  of  his  prin- 
cipal, was  allowed  to  maintain  an  action  at  law  against  the 
latter,  on  the  implied  contract  of  indemnity.  He  was  com- 
pelled to  resort  to  the  court  of  chancery  for  reimbursement,  (d) 
And  it  was  not  till  1800,  that  one  of  two  sureties,  who  had 
paid  the  whole  of  the  principal's  debt,  was  held  in  England  to 
be  entitled  at  law  to  recover  contribution  from  his  co-surety,  (e) 
Thirteen  years  eai'lier  (1787),  Lord  Chief  Baron  Eyre,  in  the 
case  of  a  bill  in  equity  by  a  surety,  demanding  contribution 
of  a  co-surety,  asserted  that  contribution  was  not  founded  in 
contract,  but  on  a  principle  of  justice  and  equity.  (/)  The 
late  Chancellor  Kent  affirmed  the  same  doctrine,  (g)  The 
courts  of  North  Carolina  refused  to  sustain  an  action  at  law, 
in  such  case,  until  jurisdiction  was  conferred  by  statute,  (h) 

(a)   1  Ld.  Raym.  538. 
(6)  6  Mod.  131. 

(c)  2  Strange,  933.     See  also  Vaugh.  101.    3  Wooddeson,  169,  170. 

(d)  2  T.  R.  105. 

(e)  Cowell  V.  Edwards,  2  Bos.  &  Pul.  268.  Co-sureties  must  be  joint 
undertakers,  or  the  law  of  contribution  does  not  hold.  3  Peters,  470.  13 
Wend.  400. 

(/)   1  Cox,  318   and  2  Bos.  &  Pul.  272. 

Ig)  4  Johns.  Ch.  338. 

(h)  Cam.  &  Norw.  216.     2  Car.  Law  Repos.  624. 


IMPLIED.  11 

One  who  becomes  co-surety  at  the  other  surety's  request, 
is  not  liable  to  him  for  contribution,  (a) 

It  is  often  announced  as  a  rule,  that  the  law  does  not  im- 
ply a  promise  of  contribution,  or  of  indemnity,  among  wrong- 
doers. If  two  are  sued  for  a  joint  tort,  and  judgment  is 
recovered  against  both,  and  execution  is  levied  upon  one  of 
them  only,  or  if  only  one  of  them  is  sued,  and  has  judgment 
against  him,  which  he  satisfies,  he  cannot  recover  a  moiety  of 
the  other,  (b)  It  is  settled,  however,  by  numerous  decisions, 
that  this  rule  is  restricted  to  cases  in  which  the  party  seeking 
contribution  or  indemnity  knew,  or  must  be  presumed  to  have 
known,  when  he  did  the  act  for  which  he  was  held  respon- 
sible, that  it  was  unlawful,  and  that  the  rule  is  not  applicable 
to  cases  in  which  he  acted  in  good  faith  in  apparent  further- 
ance of  justice,  and  in  the  exercise  of  his  own  or  of  other's 
rights;  although  he  thereby  subjects  himself  to  a  third  person's 
action  that  sounds  in  tort.  Hence,  if  an  auctioneer  sells 
goods  by  direction  of  A.,  who  untruly  represents  himself  as  the 
owner,  he  and  A.  are,  in  law,  joint  wrong-doers  ;  and  if  the 
true  owner  recovers  damages  of  the  auctioneer  alone,  or  of  A. 
and  him  jointly,  and  he  pays  them,  he  can  maintain  an  ac- 
tion against  A.  on  an  implied  promise  of  indemnity,  (c)  The 
same  is  true  of  an  officer  who,  by  direction  of  a  judgment  cred- 
itor, levies  an  execution  on  property  not  the  judgment  debt- 
or's, and  the  true  owner  recovers  judgment  against  him  for 
damages  ;  (d)   or  if  such  creditor  directs  an  officer  to  arrest,  as 

(a)  2  Esp.  R.  478.  2  El.  &  Bl.  297.  12  Mass.  102.  2  Dana,  296.  6  Gill 
&  Johns.  250.     Pitman  on  Prin.  &  Surety,  150. 

(6)  Merry  weather  v.  Nixan,  8  T.  R.  186.  Thwaite  v.  Warren,  6  Petersd. 
Ab.  (Amer.  ed.)  149.  Liugard  v.  Bromley,  1  Ves.  &  B.  117.  Pecij  v.  Ellis, 
2  Johns.  Ch.  131.  Dupuy  v.  Johnson,  1  Bibb,  565.  By  Jackson,  J.,  15  Mass. 
521.  By  the  civil  law,  when  several  persons  were  condemned  in  solido  to  pay 
■  money  to  another  for  an  injury  committed  by  them,  he  who  paid  the  whole 
had  no  legal  recourse  to  the  others  for  contribution  ;  but  by  the  French  law 
(as  stated  by  Pothier)  he  may  recover  contribution  on  the  same  principles 
that  are  applied  to  a  surety  in  recovering  from  his  co-surety.  1  Pothier  on 
Obligations,  by  Evans,  (1st  Amer.  ed.)  147.  2  ib.  70,  (3d  Amer.  ed.)  245, 
246.     2  ib.  69.     2  Johns.  Ch.  137,  138. 

(c)  Adamson  v.  Jarvis,  4  Bing.  66  and  12  Moore,  241. 

(d)  Humphrys  v.  Pratt,  2  Dow  &  Clark,  288  and  5  Bligh  N.  S.  154. 


12  LAW   OP   CONTRACTS. 

the  judgment  debtor,  another  person,  and  he  does  so,  and  that 
person  recovers  damages  against  him  for  false  imprison- 
ment, (a)  A  like  application  of  this  point  of  law  is  shown  in 
various  other  cases  cited  in  the  margin,  (b) 

As  the  law  would  doubtless  have  implied  a  promise  of  in- 
demnity in  those  cases  in  which  an  express  promise  was  held 
to  be  lawful  and  was  enforced  by  suit,  a  moment's  digression 
from  the  subject  of  implied  contracts  may  here  be  allowed, 
for  the  purpose  of  referring  to  those  cases,  in  this  connec- 
tion. 

The  first  two  known  suits  on  an  express  promise  were 
decided  in  Michaelmas  term,  20  Jac.  I.  One  was  Fletcher  v. 
Harcot,  Hutton,  55,  and  in  Winch,  48,  under  the  name  of  Bat- 
tersey's  case,  and  the  other  was  Arundel  v.  Gardiner,  Cro.  Jac. 
652.  In  the  first  of  these  cases,  Harcot  brought  Battersey  to 
an  inn  kept  by  Fletcher,  and  affirmed  to  him  that  he  had 
arrested  Battersey  by  virtue  of  a  commission  of  rebellion,  and 
requested  Fletcher  to  keep  him  safely  over  night,  and  promised 
to  save  him  harmless.  Fletcher  detained  him,  as  requested. 
The  arrest  was  unlawful,  and  Battersey  recovered  of  Fletcher 
damages  in  an  action  for  false  imprisonment ;  whereupon 
Fletcher  brought  an  action  against  Harcot,  on  his  promise, 
and  recovered  judgment  against  him.  The  other  case,  in  Cro. 
Jac,  was  an  action  by  an  officer  against  a  judgment  cred- 
itor who  had  promised  to  indemnify  him  for  levying  an  exe- 
cution on  goods,  as  of  the  judgment  debtor,  which  were  the 
property  of  another,  who  recovered  damages  of  the  officer 
for  a  trespass  in  seizing  them.     In  this  case  the  plaintiff  had 

(a)  See  Collins  v.  Evans,  5  Ad.  &  EI.  N.  S.  829,  830. 

(b)  Betts  V.  Gibbins,  2  Ad.  &  El.  57  and  4  Nev.  &  Man.  64.  Toplis  v. 
Grane,  7  Scott,  643  and  5  Bing.  N.  R.  636.  Childers  v.  Wooler,  2  El.  &  El. 
287.  Gower  v.  Emery,  18  Maine,  79.  Jacobs  v.  Pollard,  10  Cush.  287. " 
Bailey  v.  Bussing,  28  Conn.  455.  St.  John  v.  St.  John's  Church,  15  Barb. 
346.  Acheson  v.  Miller,  2  Ohio  N.  S.  203.  Thweat's  Admin,  v.  Jones,  1 
Randolph,  328.  Moore  v.  Appleton,  26  Alab.  633.  These  cases  show  that 
Lord  Ellenborough's  opinion,  expressed  in  Farebrother  v.  Ansley,  1  Campb. 
345,  and  the  decision  by  him  in  Wilson  v.  Milner,  2  Campb.  452,  are  not  sus- 
tained. See  Lord  Denman's  opinion  concerning  those  two  cases,  in  2  Ad.  & 
El.  74,  75. 


EXECUTED  AND  EXECUTORY.  '  13 

judgment.  In  Coventry  v.  Barton,  17  Johns.  142,  a  surveyor 
of  highways  ordered  C,  who  was  working  out  his  highway 
tax,  to  remove  a  turnpike  gate,  which  he  (the  surveyor)  judged 
to  be  a  nuisance,  and  promised  "  to  bear  him  out."  C.  and 
others  removed  the  gate,  and  he  was  sued  by  the  turnpike 
company  for  so  doing,  and  had  judgment  against  him.  It 
was  decided  that  he  might  maintain  an  action  against  the 
surveyor  on  his  promise.  See  like  decisions  in  Allaire  v. 
Ouland,  2  Johns.  Cas.  5Q.  Marsh  v.  Gold,  2  Pick.  285.  Train 
V.  Gold,  5  Pick.  380.  Avery  v.  Halsey,  14  Pick.  174.  Ives  v. 
Jones,  3  Ired.  538.     Stone  v.  Hooker,  9  Cowen,  154. 

In  all  the  foregoing  cases,  whether  of  express  or  of  implied 
promises  of  indemnity,  and  whether  by  parol  or  by  specialty, 
the  party  suing  thereon  (as  before  stated)  must  have  acted 
bond  fide.  He  can  have  no  redress  for  an  act  that  was  obvi- 
ously unlawful.  This  was  distinctly  announced  by  Hutton,  J., 
in  Winch,  49  ;  and  in  Hutton,  56,  Lord  Hobart  said  :  "  He 
which  doth  a  thing  which  may  be  lawful,  and  the  illegality 
thereof  appear  not  to  him,  he  which  employs  the  party  and 
assumes  to  save  him  harmless,  shall  be  charged."  See  also 
Leavitt  V.  Parks,  2  Allen,  (N.  B.)  282. 

The  other  distinction  above  mentioned  as  requiring  notice, 
before  entering  upon  an  examination  of  the  principles  of  the 
law  of  contracts,  is  that  which  is  made  in  the  books  between 
executed  and  executory  contracts.  An  executed  contract  is 
one,  by  which  the  subject  of  it  is  transferred  immediately,  or 
by  which  the  right  and  possession  are  transferred  together ; 
as  if  a  horse  is  sold,  paid  for  and  delivered,  or  an  agreement 
to  exchange  horses  is  immediately  performed,  [a)  An  exec- 
utory contract  is  rather  an  engagement  to  do  a  thing,  than 
the  actual  doing  of  it ;  it  is  prospective ;  as  an  agreement  to 
exchange  horses  to-morrow,  or  to  build  a  house  in  six  months.(6) 
An  agreement  may  be  executed  by  one  party,  and  executory 
by  the  other ;  as  when  one  party  performs,  and  the  other  is 
trusted  ;  thus,  where  a  loan  of  money  is  made,  on  a  promise 

(a)  "  A  contract  executed  is  one  in  which  the  object  of  the  contract  is  per- 
formed."    By  Marshall,  C.  J.  6  Cranch,  136. 
(6)  Plowd.  9. 


14  LAW   OF   CONTRACTS. 

to  secure  it  by  bond  or  mortgage ;  the  lender  has  executed 
his  part  of  the  contract,  but  the  borrower's  contract  remains 
executory  until  performed,  (a) 

"  An  agreement,  on  sufficient  consideration,  to  do  or  not  to 
do  a  particular  thing,"  is,   as  has   been   before   suggested,  a 
sufficiently  accurate  definition  of  a  simple  contract.     Agree- 
ment implies  parties  and  their  mutual  assent ;  and,  in  speaking 
of  lawful  agreements,  we  necessarily  include  the  legality  of 
the  consideration  and  of  the  thing  to  be  done  or  omitted.     A 
more  extended   definition,  or  description,  was  given  by   Mr. 
Chitty,  in   an  early  edition  of  his  Treatise  on  the  Law  of 
Contracts  :  "  A  mutual  assent  of  two  or  more  persons  compe- 
tent to  contract,  founded  on  a  sufficient  legal  motive,  induce- 
ment, or  consideration  to  perform  some  legal  act,  or  to  omit 
to  do  any  thing,  the  performance  whereof  is  not  enjoined  by 
law."     These  several  particulars,  namely,  the  assent,  the  par- 
ties, the  consideration  or  inducement,  and  the  legality  of  the 
act  or  omission,  require  a  separate  and  distinct  examination. 
I       The  assent  must  be  mutual,  reciprocal,  concurrent.     Over- 
(  tures  or  offers,  not  definitively  assented  to  by  both  parties,  do 
i  not  constitute  a  contract,  [b)     There  must  necessarily  be  some 
'  medium  of  communication,  by  which  the  "union  of  minds" 
'  may  be  ascertained  and  manifested.     Among  men,  this  me- 
)  diura  is  language,  symbolical,  oral,  or  written.     A  proposal 
I  is  made  by  one  party,  and  is  acceded  to  by  the  other,  in  some 
I  kind  of  language  mutually  intelligible ;   and  this  is  mutual 
assent.     Persons  who  are  deaf  and  dumb  contract  only  by 
symbolical  or  written  language.     The  language  of  contracts 
at  auction  is  often  wholly  symbolical.     A  nod  or  wink  by  one 
party,  and  a  blow  of  a  hammer  given  by  the  other,  evince 
mutual  assent. 

An  offer,  or  proposal,  may  be  retracted  at  any  time  before 

(a)  2  Bl.  Com.  447.    1  Powell  on  Cont.  234.    1  Comyn  on  Cont.  (1st  ed.)  3. 

(i)  Kintjston  v.  Phelps,  Peake,  227.  Gaunt  v.  Hill,  1  Stark.  R.  10. 
Bruce  i;.  Pearson,  3  Johns.  534.  Burnet  v.  Bisco,  4  ib.  235.  Tucker  v. 
Woods,  12  ib.  190.  Craig  v.  Harper,  3  Cash.  158.  Beckwith  v.  Cheever, 
1  Foster,  41.     Smith  v.  Gowdy,  8  Allen  566. 


ASSENT.  15 

it  is  accepted.  A  bidder  at  an  auction  may  retract  his  bidding 
before  the  hammer  is  down,  (a)  So  any  other  offef,  whether 
written,  oral,  or  symbolical,  is  subject  to  be  retracted  before 
acceptance.  Even  where,  by  the  terms  of  the  offer,  time  is 
given  for  the  other  party  to  accept  or  reject  it,  there  is  still 
locus  penitentice  until  the  offer  is  accepted ;  and  an  acceptance, 
subsequent  to  the  retraction,  is  of  no  avail,  [b) 

When  by  the  terms  of  the  offer  no  time  is  prescribed  within 
which  it  is  to  be  acceded  to,  it  will  be  considered  as  withdrawn, 
or  rejected,  or  at  an  end,  if  it  is  not  seasonably  accepted. 
What  is  seasonable  acceptance,  in  other  words,  how  long 
such  unqualified  offer  shall  continue  open  for  acceptance, 
if  not  expressly  retracted,  depends  on  the  circumstances 
of  each  case  that  may  arise,  and  on  the  ordinary  forms  of 
intercourse  and  business  between  the  parties.  If  they  are 
together,  this  question  is  to  be  decided,  not  so  much  by  the 
time  that  elapses  between  the  offer  and  acceptance,  as  by  the 
conduct  of  the  parties  during  that  time  ;  whether  it  be  such 
as  reasonably  to  imply  that  a  negotiation  is  still  open;  that 
the  offer  is  neither  rejected  nor  withdrawn.  A  separation  of 
the  parties,  without  reference  to  a  future  meeting,  would, 
probably,  in  most  if  not  in  all  cases,  be  regarded  as  decisive 
evidence  that  the  offer  no  longer  existed.  When  the  parties 
are  apart,  and  an  offer  is  made  in  writing,  or  by  oral  message, 
a  reasonable  time  is  allowed  for  notice  of  acceptance  to  be 
returned  ;  and  this  depends  on  the  distance,  the  means  of 
early  communication,  the  nature  of  the  business,  usage,  and 
various  other  circumstances,  which  may  combine  in  a  given 
case,  but  which  cannot  be  fixed  beforehand  by  any  determi- 
nate rule.  Every  case  of  this  sort,  as  well  as  the  former,  must 
be  decided  on  its  own  circumstances,  (c) 

(a)  Payne  v.  Cave,  3  T.  R.  148. 

(6)  Routledge  v.  Grant,  4  Bing.  6.'i3  and  1  Moore  &  Payne,  717.  Craig  v. 
Harper,  3  Cush.  158.  Boston  &  Maine  Railroad  v.  Bartlett,  3  Cush.  224. 
Falls  V.  Gaither,  9  Porter,  605.  Gravier  v.  Gravier's  Heirs,  15  Martin,  206. 
See  also  Rutberfortli,  lib.  i.  c.  12,  §§  14,  20.     Bell  on  Sales,  32-38. 

(c)  See  Loring  v.  City  of  Boston,  7  Met.  409.  Averill  v.  Hedge,  12  Conn. 
424.  Inhabitants  of  Peru  w.  Inhabitants  of  Turner,  1  Fairf.  185.  Emmott 
1-.  Riddel,  2  Post.  &  Finl.  142. 


16  LAW   OP   CONTRACTS. 

In  oral  and  symbolical  communications,  when  the  parties . 
are  together,  the  assent  is  mutual  and  the  contract  completed, 
when  the  acceptance  of  one  party  is  announced  to  the  other. 
But  in  a  case  of  written  communications  between  parties 
distant  from  each  other,  there  is  a  difference,  not  only  in  wri- 
ters, but  also  in  courts,  on  the  question  whether  acceptance 
of  an  offer  operates  from  the  time  when  it  is  made,  or  from 
the  time  when  it  is  received,  (a) 

"  A  scruple,"  says  Puffendorf,  "  has  sometimes  been  moved, 
whether  the  obligation  in  the  promiser  begins  at  the  very 
moment  when  the  offer  is  accepted  by  the  other  party ;  or 
whether  it  is  farther  necessary,  that  the  acceptance  be  made 
known  to  the  promiser  ?  And  here  it  is  certain,  that  a  prom- 
ise may  be  designed  and  expounded  two  ways ;  either  thus : 
I  engage  myself  to  do  the  thing,  if  it  shall  be  accepted ;  or 
thus :  I  engage  myself  to  do  the  thing,  if  I  shall  understand 
that  it  will  be  accepted.  Now,  which  of  the  two  senses  the 
promiser  intended,  is  to  be  gathered  and  presumed  from  the 
nature  of  the  business.  If  the  promise  were  a  matter  of  pure 
generosity,  without  restriction  or  limitation,  we  are  to  believe 
it  was  meant  in  'the  former  sense  ;  because  here  the  promiser 
hastens,  as  it  were,  to  bind  himself,  without  staying  for  any 
formality  in  the  other  party.  But  those  promises  are  to  be  un- 
derstood in  the  latter  sense  which  express  some  arbitrary  or 
mixt  condition  essential  to  the  engagement."  (b)  But  Barbey- 
rac,  in  his  notes  on  Grotius,  (c)  says  this  case  is  to  be  decided 
in  a  quite  contrary  manner.  "  If  one  mentally  accedes  to  an 
offer,  there  is  in  fact  an  union  of  minds ;  but  assent  must  be 
proved ;  therefore,  a  manifestation  of  assent  is  necessary,  as 
matter  of  evidence.  It  follows,  that  assent  to  a  proposal  ope- 
rates from  the  time  it  is  expressed.  When  parties  are  together, 
therefore,  the  assent  to  a  proposal  operates  from  the  time  it  is 

(a)  There  are  cases,  in  which  an  acceptance  of  an  offer  is  implied  from  the 
conduct  and  perliaps  from  the  silence  of  the  party  to  whom  it  is  made,  and 
in  which  no  express  notice  of  acceptance  needs  to  be  given.  See  Train  v. 
Gold,  5  Pick.  380. 

(b)  Puffendorf,  lib.  iii.  c.  6,  §  15.      See  also  Vitriarius,  lib.  ii.  c.  11,  §  30. 
Hutcheson's  Moral  Philosophy,  lib.  ii.  c.  9,  §§  6,  7. 

(c)  Lib.  ii.  c.  11,  §  15. 


MUTUAL   ASSENT.  17 

conveyed  to  the  proposer.  When  they  are  apart,  and  communi- 
cate by  message  or  letter,  the  assent  operates  from  the  time 
when  the  party  expresses  his  assent  to  the  messenger,  or  puts 
it  on  paper  in  the  form  of  an  acceding  to  the  offer  made  to 
him." 

The  court  of  King's  Bench,  in  1818,  decided  that  the 
acceptance  of  an  offer  operated  from  the  time  when  it  was 
made,  and  not  merely  from  the  time  when  notice  of  it  was 
received,  (a)  That  was  a  case  in  which  the  defendant  had  by 
letter  offered  the  plaintiff  certain  goods  at  a  specified  price,  on 
receiving  notice  of  acceptance  "in  course  of  post;"  but  by 
misdirection  of  his  letter  containing  the  offer,  it  was  not  re- 
ceived in  the  regular  course  of  the  post  to  the  place  of  the 
plaintiff's  residence,  and  he,  on  receiving  it  two  days  after- 
wards, returned  an  answer  by  the  first  post,  accepting  the  offer. 
The  court  held  that  the  contract  was  completed ;  that  as  the  mis- 
direction of  the  letter  was  the  error  of  the  defendant,  it  should 
not  affect  the  plaintiff,  who  replied  by  the  earliest  post  after 
he  received  the  offer,  it  must  be  deemed,  as  against  the  de- 
fendant, to  be  made  by  the  course  of  the  post,  within  the 
terms  of  the  offer.  And  it  is  now  the  established  law  of 
England  that  a  contract  is  completed,  when  a  letter  declaring 
the  acceptance  of  an  offer  is  seasonably  posted ;  and  that  the 
party  thus  accepting  is  not  answerable  for  casualties  occurring 
at  post-offices,  {b)  So  a  contract  is  complete,  when  an  offer 
is  made  by  an  agent  and  an  acceptance  is  communicated  to 
him,  although  he  does  not  seasonably  apprise  the  principal 
that  the  offer  is  accepted,  (c) 

The  supreme  court  of  Massachusetts  decided  that  an  accept- 
ance of  an  offer  operates  from  the  time  when  it  is  made 
known,  and  not  from  the  time  when  it  is  made.  The  case 
was  this :  An  insurance  company,  on  the  first  of  January, 
offered  by  letter  to  insure  a  ship  on  certain  terms.     On  the 

(a)  Adams  v.  Lindsell,  1  B.  &  Aid.  681. 

(ft)  Dunlop  V.  Higgins,  1  House  of  Lords  Cas.  381.  Duncan  v.  Topham, 
8  C.  B.  225.  Potter  v.  Sanders,  6  Hare,  1.  Stocken  v.  Collin,  7  Mees.  & 
Welsb.  515  and  Hurlst.  &  Walms.  84. 

(c)  Wright  V.  Bigg,  15  Beavan,  592. 
2 


18  LAW   OP   CONTRACTS. 

next  day,  they  wrote  another  letter  retracting  the  offer.  The 
first  letter  was  received  by  the  owner  of  the  ship,  on  the  third 
of  January,  and  he  on  that  day  replied  to  it,  accepting  the 
offer,  before  he  received  their  second  letter.  All  the  letters 
were  sent  by  mail  and  received  by  the  parties  on  the  second 
day  after  they  were  written.  The  offer  was  therefore  accepted 
before  the  retraction  was  made  known,  and  the  retraction  was 
made  before  the  acceptance  was  made  known.  It  was  decided 
that  there  was  no  agreement  to  insure,  (a) 

The  English  doctrine  above  stated,  is  sustained  by  the  courts 
of  other  States,  and  by  the  supreme  court  of  the  United 
States,  (b) 

This  doctrine,  however,  is  not  applied  to  the  acceptance  of 
a  bill  of  exchange.  The  drawee  is  not  bound  by  writing  his 
acceptance  on  it,  if  he  change  his  mind  and  cancel  it  before 
it  is  communicated  to  the  holder,  (c) 

A  contract  may  be  made  by  telegraphic  despatches,  subject, 
it  is  presumed,  to  the  same  rules  that  apply  to  contracts  made 
by  letters  transmitted  by  mail  or  otherwise,  (d) 

An  offer,  or  proposal,  must  be  accepted  or  assented  to,  in 
the  terms  on  which  it  is  made.  Thus,  if  an  offer  is  made, 
limiting  the  time  or  mode  in  which  it  is  to  be  accepted,  an 
acceptance  made  after  the  time,  or  in  a  different  mode,  does 
not  constitute  a  mutual  agreement.  Such  acceptance  can  be 
regarded  only  as  a  new  proposal  by  him  to  whom  the  offer 
was  made,  and  requires  the  subsequent  assent  of  the  other 
party  to  make  it  a  contract.  As  if  a  trader  orders  goods  of 
a  specified  quantity,  or  on  certain  terms  of  credit,  and  a  less 

(a)  M'Culloch  V.  Eagle  Ins.  Co.  1  Pick.  278. 

(b)  Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  Howard,  390.  Mactier  i>.  Frith, 
6  Wend.  103.  Brisban  v.  Boyd,  4  Paige,  17.  Vassar  v.  Camp,  1  Kernan, 
441.  Averill  17.  Hedge,  12  Conn.  424.  Chiles  v.  Nelson,  7  Dana,  282.  Falls 
V.  Gaither,  9  Porter,  613.  Levy  v.  Cohen,  4  Georgia,  13.  The  Palo  Alto, 
Daveis,  343.  Hutcheson  v.  Blakeman,  3  Met.  (Ky.)  Rep.  80.  See  also 
Shaw  on  Obligations,  12. 

(c)  Cox  V.  Troy,  5  B.  &  Aid.  474  and  1  Dowl.  &  Ryl.  38.  Wilde  v.  Sheri- 
dan, 11  Eng.  Law  &  Eq.  Rep.  382. 

(d)  Taylor  v.  Steamboat,  20  Missouri,  254.  Durkee  v.  Vermont  Central 
Railroad,  29  Verm.  127. 


MUTUAL  ASSENT.  19 

quantity  is  forwarded,  or  on  a  shorter  credit,  he  is  not  bound 
to  receive  and  pay  for  them,  (a)  So,  where  an  offer,  by  letter, 
to  purchase  goods,  required  an  answer  by  the  return  of  the 
wagon  by  which  the  letter  was  sent,  and  the  offer  was  ac- 
cepted by  a  letter  sent  by  mail  to  a  different  place  from  that 
to  which  the  wagon  was  to  return,  it  was  held  that  there  was 
no  contract,  (b)  By  accepting  goods  sent  on  different  terms, 
or  by  waiving  the  difference  in  time  or  place,  the  party  is  re- 
garded as  acceding  to  the  modified  or  varied  terms  proposed 
by  the  other,  and  thus  the  assent  becomes  mutual  and  the 
contract  complete. 

It  was  formerly  supposed,  from  the  case  of  Cooke  v.  Ox- 
ley,  as  reported  in  3  T.  R.  653,  that  when  time  is  given  by  one 
party  for  the  other  to  accept  the  offer,  the  party  making  such 
offer  is  not  bound  by  the  other's  acceptance,  within  the  time 
mentioned.  Oxiey  offered  to  sell  Cooke  two  hundred  and 
sixty-six  hogsheads  of  tobacco,  at  a  certain  price,  and  gave 
him,  at  his  request,  till  four  o'clock  in  the  afternoon  of  the 
same  day,  "  to  agree  to,  or  dissent  from  the  proposal."  Be- 
fore that  hour,  Cooke  gave  Oxley  notice  of  his  assent  to  the 
proposal.  But  it  was  held,  that  Oxley  was  not  bound ;  that 
there  was  no  contract.  Such  appears,  from  the  declaration 
given  in  the  report  and  from  the  marginal  abstract  of  the  case, 
to  have  been  the  decision,  and  so  it  was  long  understood  and 
set  forth  in  the  books,  (c)  The  supreme  court  of  New 
York  so  understood  it,  and  inclined  to  regard  it  as  sound 
law.  (d)  The  supreme  court  of  Massachusetts  also  consid- 
ered it  in  the  same  light,  but  questioned  the  soundness  of 
the  decision,  (e) 

If  the  case  were  accurately  reported,  it  would  be  not  only 

(a)  Bruce  v.  Pearson,  3  Johns.  534.  Tuttle  v.  Love,  7  ib.  470.  1  Campb. 
53.    2  Barn.  &  Cres.  37. 

(6)  Eliason  v.  Henshaw,  4  Wheaton,  225.  Routledge  v.  Grant,  4  Bing.  653. 
Duke  V.  Andrews,  2  Exch.  290. 

(c)  Bac.  Ab.  Assumpsit,  (Guillim's  ed.)  C.  2  Comyn  on  Contracts, 
(Isted.)  211.  3  Stark.  Ev.  (4th  Amer.  ed.)  1634.  Chitty  on  Contracts, 
(1st  ed.)  108.     6  Petersd.  Ab.  (Amer.  ed.)  130,  136. 

(d)  Tucker  v.  Woods,  12  Johns.  190. 

(e)  1  Pick.  281. 


20  LAW   OF   CONTRACTS. 

unreasonable  and  inconsistent  with  good  faith,  but  at  vari- 
ance with  acknowledged  principles  of  law,  and  with  all  pre- 
vious and  subsequent  decisions,  except  that  of  the  court  of 
Tennessee,  in  the  case  of  Gillespie  v.  Edmonston,  11  Humph. 
553.  Had  Oxley  retracted  his  offer  before  it  was  accepted 
by  Cooke,  the  acceptance  afterwards  would  not  have  bound 
him.  But  the  offer  was  not  retracted,  nor  rejected,  nor  at  an 
end,  either  expressly  or  by  implication,  before  it  was  ac- 
cepted. If,  after  the  offer  was  made,  the  parties  had  separated, 
and  no  time  had  been  given  for  future  acceptance,  an  accept- 
ance afterwards  would  have  been  too  late.  Whether,  in  such 
case,  the  offer  would,  in  law,  be  considered  as  refused,  or 
withdrawn,  or  as  having  expired,  it  is  not  material  to  inquire. 
It  would  not,  at  any  rate,  be  considered  as  obligatory.  By  the 
terms  of  the  offer  in  question,  it  was  to  remain  open  (unless 
previously  retracted,  accepted,  or  rejected),  until  four  o'clock. 
It  was  a  continuing  offer. 

Lord  Kenyon's  summary  opinion  is  in  these  words : 
"  Nothing  can  be  clearer  than  at  the  time  of  entering  into 
this  contract,  the  engagement  was  all  on  one  side ;  the  other 
party  was  not  bound  ;  it  was  therefore  nudum  pactum"  And 
Buller,  J.,  said  :  "  It  is  not  stated  that  the  defendant  did  agree, 
at  four  o'clock,  to  the  terms  of  the  sale."  These  expressions 
are  strong  evidence  that  the  question  was  not  understood  by 
the  court  as  it  has  been  by  others,  and  that  the  declaration 
and  the  point  adjudged  are  misstated  in  the  report.  For  in  all 
contracts,  the  offer  is  made  by  one  side,  and  the  other  is  never 
obliged  to  accept  it.  And  Lord  Kenyon  could  not  mean  to 
say  that  no  acceptance  binds  the  party  who  makes  the  offer ; 
and  yet  his  assertion  would  involve  this  consequence,  and  pre- 
vent the  completion  of  any  contract  whatever.  If  he  who 
makes  an  offer  is  not  bound  by  its  acceptance,  because  the 
other  party  is  not  obliged  to  accept  it,  it  follows,  by  parity  of 
reason,  that  he  who  accepts  the  offer  is  not  bound  by  the  ac- 
ceptance, because  the  other  party  is  not  obliged  to  receive  it; 
and,  thus  on  this  ground,  no  binding  agreement  could  ever  be 
made.     5  Barr,  343. 

There  is  further  and  conclusive  evidence  that  the  case  is 


MUTUAL   ASSENT.  21 

misreported.  In  Humphries  v.  Carvalho,  16  East,  47,  Bay- 
ley,  J.,  said :  "  The  question  in  Cooke  v.  Oxley  arose  upon 
the  record,  and  a  writ  of  error  was  afterwards  brought  on  the 
judgment  of  ^his  court,"  (King's  Bench),  "  by  which  it  ap- 
pears that  the  objection  made  was,  that  there  was  only  a  pro- 
posal of  sale  by  the  one  party,  and  no  allegation  that  the  other 
party  had  acceded  to  the  contract  of  sale."  See  also  4  Bing. 
660  and  1  Moore  &  Payne,  732. 

It  was  argued,  in  defence  of  the  supposed  doctrine  of  Cooke 
V.  Oxley,  that  it  is  a  principle  of  contracts,  that  both  parties 
must  be  bound,  in  order  to  bind  either.  This  means,  however, 
nothing  more  than  that  the  assent  of  both  parties  is  necessary 
to  constitute  an  agreement ;  but  both  parties  may  as  well 
consent  that  the  one  shall  be  bound,  and  the  other  retain,  for 
a  specified  time,  his  option  to  be  bound  or  not,  as  that  any 
other  arrangement  shall  be  made.  And  in  common  business 
it  often  happens  that  contracts  are  made,  optional  with  one 
party  and  obligatory  on  the  other,  (a)  Where  one  buys  a 
horse  under  an  agreement  that  it  may  be  returned  in  a  limited 
time,  if  it  prove  restive  or  do  not  suit  the  purchaser's  family, 
the  seller  is  bound  to  receive  the  horse,  if  returned  within 
the  time,  but  the  buyer  is  not  bound  to  return  it.  {b)  So  if 
one  engages  to  take  and  pay  for  grain,  from  five  hundred 
to  one  thousand  bushels,  he  is  bound  to  take  one  thousand 
bushels,  or  five  hundred,  or  any  intermediate  quantity ;  but 
the  other  is  not  obliged  to  deliver  more  than  the  smallest 
quantity  mentioned,  (c) 

It  was  further  argued,  in  support  of  said  supposed  decision, 
that  mutual  promises,  where  one  is  the  consideration  of  the 
other,  must  be  made  at  the  same  time,  or  they  are  not  bind- 
ing, {d)  But  no  proposal  and  acceptance  can  be  strictly  si- 
multaneous.   The  medium  of  communication  among  men  does 

(a)  7  Ad.  &  El.  23,  by  Patteson,  J,  5  Mees.  &  Welsh.  501,  by  Parke,  B. 
5  Pick.  385.     8  Gray,  213. 

(b)  See  Clarke's  case,  Clayton,  118. 

(c)  3  Johns.  Cases,  81.  2  ib.  253.  16  East,  45.  1  T.  R.  135.  4  Greenl. 
497. 

(d)  "  The  promises  must  be  at  one  instant."    Nichols  v.  Kaynbred,  Hobart, 


S2  LAW   OF  CONTRACTS. 

not  allow  it.  One  must  precede  the  other.  And  if  the  party 
making  the  proposal  is  bound  by  the  acceptance,  when  tend- 
ered immediately  (as  is  universally  admitted),  it  is  not  easy 
to  perceive  why  he  is  less  bound,  when  it  is  tendered  within 
the  time  specified  by  the  proposal  itself.  The  offer,  in  the 
latter  case,  is  a  continuing  offer,  and  may  be  regarded  in  law 
as  made  at  the  last  moment  of  time  preceding  the  acceptance ; 
and  the  acceptance  and  offer  are,  in  legal  contemplation,  "  at 
one  instant."  (a) 

This  rule  concerning  mutual  promises,  when  examined,  will 
be  found  to  import  nothing  more  than  that  there  must  be 
reciprocal  assent  (as  it  has  already  been  explained)  to  consti- 
tute a  contract.  The  rule  has  been  well  discussed  on  a 
question  of  pleading.  In  setting  forth  such  promises  in  a  dec- 
laration, it  is  necessary  that  they  should  be  alleged  to  be 
concurrent.  According  to  the  precedents  and  decisions,  the 
party  suing,  when  he  has  stated  the  offer  on  the  one  part,  must 
aver,  that  thereupon,  or  then,  an  acceptance  thereof  was  made 
on  the  other  part,  (b)  Alleging  the  acceptance  or  promise,  on 
the  other  part,  to  have  been  made  "  afterwards  on  the  same 
day,"  has  been  held  to  be  bad.  (c) 

Though  this  may  at  first  appear  to  be  hypercritical,  it  will 
be  found,  on  consideration,  to  be  sound  and  reasonable.  It  is 
a  most  salutary  rule  of  pleading,  that  a  party  must  set  forth 
his  cause  of  action  or  defence,  with  reasonable  certainty.  It 
must,  to  say  the  least,  not  appear,  from  his  own  showing  and 
statement,  that  he  has  no  cause  of  action,  or  no  ground  of 
defence  ;  nor  that  he  may  have  none,  although  his  statement 
be  taken  as  wholly  true.  But  in  setting  forth  an  offer  on  a 
given  day,  and  averring  an  acceptance  afterwards,  though  on 
the  same  day,  a  party  does  not  show  necessarily  that  there 
was  any  mutual  assent.  The  offer,  as  has  before  been  stated, 
may  have  been  retracted,  or  rejected,  or  have  expired,  within 
an  hour  from  the  time  it  was  made.     And  as  this  depends  on 

(a)  See  1  B.  &  Aid.  683.    6  Wend.  115.      8  Merlv.  454,  455. 
(ft)  In  point  of  form  the  ofier  and  acceptance,  usually,  are  both  described 
as  promises. 

(c)  See  1  Caines,  584.    12  Johns.  400. 


DURESS.  23 

such  a  variety  of  circumstances,  peculiar  to  every  case,  it 
would  be  a  great  stretch  of  credulity,  as  well  as  of  legal  pre- 
sumption, to  assume  that  an  acceptance  of  an  offer,  on  the 
same  day  it  is  made,  does  of  course  evince  a  mutual  concur- 
rent assent  of  the  parties,  according  to  the  principles  before 
suggested. 

Strict,  however,  as  this  doctrine  of  alleging  mutual  prom- 
ises undoubtedly  is,  it  does  not  help  to  support  the  decision 
in  Cooke  v.  Oxley,  as  formerly  understood.  For  by  alleging 
the  offer  on  a  certain  day,  according  to  its  terms,  and  averring 
an  acceptance  at  or  before  the  hour  allowed  therefor,  a  con- 
current assent  is  shown,  and  mutual  promises  at  the  same 
instant.  For  there  was,  as  has  been  repeatedly  suggested,  a 
continuing  offer  in  that  case,  as  well  as  in  those  which  have 
been  cited,  where  an  offer  was  sent  and  an  acceptance  re- 
turned by  mail.  In  the  case  of  Adams  v.  Lindsell,  (a)  the 
court  say,  "  The  defendants  must  be  considered  in  law  as 
making,  during  every  instant  of  the  time  their  letter  was  trav- 
elling, the  same  identical  offer  to  the  plaintiff;  and  then  the 
contract  is  completed  by  the  acceptance  of  it  by  the  latter." 
That  case  durectly  impugns  the  doctrine  of  Cooke  v.  Oxley 
(which  was  pressed  upon  the  court},  and  may  be  considered 
as  having  overruled  it,  if  indeed  it  ever  was  decided  on  the 
ground  so  generally  supposed. 

Assent  must  not  only  be  mutual  but  free.  Hence  agree-  <; 
ments  extorted  by  violence  or  terror  (called  duress)  are  invaHd.  t 
Duress,  that  avoids  a  contract,  is  of  two  kinds  ;  duress  of  im- 
prisonment, and  duress  per  minas.  Such  duress  of  imprison- 
ment is  the  illegal  restraint  of  personal  liberty,  whether  in 
a  prison  or  elsewhere ;  or  illegal  force  or  privation  imposed 
upon  a  person  lawfully  imprisoned,  for  the  purpose  of  ex- 
torting some  promise  or  contract  from  the  person  thus  re- 
strained. (6) 

It  seems  to  have  been  formerly  held,  that  imprisonment 

(a)  1  B.  &  Aid.  683. 

(5)  2  Inst.   482.      Bac.  Ab.    Duress,    A.     Shep.  Touch.    61.      Perkins, 
§17.     Finch,  102.     Shaw  on  Obligations,  43-48. 


24  LAW   OF   CONTRACTS. 

under  regular  and  formal  legal  process,  though  malicious  and 
without  probable  cause,  did  not  constitute  such  duress,  {a) 
Executio  juris  non  habet  injuriam.  But  great  injuries  are 
sometimes  inflicted  under  color  of  legal  process.  And  it  has 
been  decided  in  Massachusetts,  New  Hampshire  and  New 
York,  that  process,  though  in  form  regular  and  legal,  sued  out 
maliciously  and  without  probable  cause,  to  arrest  and  im- 
prison a  man,  is  such  duress  as  will  avoid  a  deed  given  by 
him  to  procure  his  deliverance,  {h) 

So  though  a  person  is  arrested  on  a  lawful  warrant,  by  a 
proper  officer,  yet  if  one  of  the  purposes  of  the  arrest  is 
thereby  to  extort  money  or  enforce  the  settlement  of  a  civil 
claim,  such  arrest  is  false  imprisonment,  and  a  release  or  con- 
veyance of  property  by  means  of  the  arrest  is  void,  (c) 

As  a  general  rule,  imprisonment  by  order  of  law  is  not 
duress  that  will  avoid  a  contract ;  and  therefore,  if  a  man,  sup- 
posing that  he  has  cause  of  action  against  another,  cause  him 
to  be  arrested  and  imprisoned  by  lawful  process,  and  the  de- 
fendant voluntarily  execute  a  deed  or  note,  or  make  any 
other  promise,  to  obtain  his  deliverance,  he  cannot  avoid  such 
contract  by  duress  of  imprisonment,  although  the  plaintiff  had 
no  cause  of  action :  [d)  a  fortiori^  if  a  man,  under  arrest  or 
imprisoned  for  a  just  cause,  make  an  agreement  voluntarily 
for  the  purpose  of  procuring  his  liberty,  he  cannot  avoid  it 
on  the  ground  of  duress,  (e)  If  the  process,  under  which  a 
party  is  arrested  or  imprisoned,  be  void ;  as  if  the  court 
have  no  jurisdiction  of  the  cause,  or  no  authority  to  issue 
such  process ;  the  arrest  or  imprisonment  is,  of  course,  un- 
lawful, and  an  obligation   given  by  the   prisoner  (as  a  bail 

(a)  1  Lev.  68,  69. 

(&)  Watkins  v.  Baird,  6  Mass.  506.  Richardson  v.  Duncan,  3  N.  Hamp. 
508.  Severance  v.  Kimball,  8  ib.  386.  Strong  v.  Grauuis,  26  Barb.  122. 
See  also  Aleyn,  92.     Bui.  N.  P.  172. 

(c)  Hackett  v.  King,  6  Allen,  58. 

(d)  6  Mass.  511.  Hobart,  266,  267.  But  see  Bui.  N.  P.  172.  Tcrmes 
de  la  Ley,  Duress,  1  Lil.  Ab.  494.  In  these  books  it  is  laid  down  that,  if  the 
cause  of  action  is  not  good,  a  bond  so  given  is  voidable  for  duress. 

(e)  3  Caines,  168.  2  Inst.  482.  3  Leon.  239.  Perk.  §  18.  1  Fairf.  325. 
1  Bailey,  84.     4  Harrington,  311. 


DUEESS.  25 

bond,&c.),  for  his  enlargement,  is  voidable  for  duress,  (a)  Du- 
ress per  minas  is,  1.  for  fear  of  loss  of  life  ;  2.  of  loss  of  mem- 
ber ;  3.  of  mayhem ;  4.  of  imprisonment,  (b)  And  this  fear 
must  be  upon  sufficient  reasons  :  Non  siispicio  cnjuslibet  vani 
et  meticulosi  hominis,  sed  talis  qui  possit  cadere  in  virum  con- 
stantem.  Menace  of  a  mere  battery,  or  to  destroy  property, 
even  to  burn  one's  house,  seems,  by  the  preponderance  of 
authority,  not  to  amount  to  duress,  (c)  A  firm  man,  vir 
constans,  ij;  is  said,  may  withstand  such  menaces ;  and  if 
they  are  executed,  the  party  injured  may  recover  damages  in 
proportion  to  the  injury  done  him.  "  This,  however,"  as  Mr. 
Starkie  observes,  "  is  clearly  a  very  inadequate  reason  for  the 
distinction,  and  may  be  frequently  false  in  fact."  {d)  And 
Mr.  Chitty  doubts  whether,  at  the  present  day,  the  threat  to 
commit  so  serious  an  injury  as  the  burning  of  a  house  would 
not  be  considered  such  duress  as  will  avoid  a  contract,  (e) 

In  South  Carolina,  the  courts  have  holden  that  there  may 
be  cases  in  which  a  man's  necessities  are  so  urgent  and  press- 
ing, that  duress  of  his  goods  may  avoid  his  acts ;  (/)  and 
where  the  party  is  unable  to  make  satisfaction,  or  where  there 
is  no  speedy  tribunal  to  enforce  it,  it  is  there  said,  as  the 
reason  of  the  law  ceases,  the  law  itself  does  not  apply.  The 
contrary,  however^  is  the  present  law  of  England,  as  declared 
by  Lord  Denman,  in  11  Ad.  &  El.  990  and  3  P.  &  Dav.  600, 
601,  and  by  Baron  Parke,  in  3  Mees.  &  Welsh.  650,  and  in  6 
Exch.  348.  The  old  case  in  the  Year  Book,  (20  Ass.  pi.  14), 
cited  in   1  Bro.  Ab.  258  b.  and  1  Rol.  Ab.  687,  in   which  a 

(a)  Cro.  Eliz.  647.  4  Inst.  97.  S.  P.  15  Johns.  256.  See  also  7  T.  R. 
376,  where  Lord  Kenyon  says  that  a  bail  bond,  executed  by  a  person  under 
arrest,  where  the  affidavit  to  hold  to  bail  is  insufficient,  may  be  avoided  on  the 
ground  of  duress.  See  also  8  Greenl.  426.  21  Conn.  598.  17  Pick.  252.  11 
Cush.  247.    5  Cranch  C.  C.  Rep.  124. 

(b)  2  Inst.  483.  Bac.  Ab.  Duress,  A.  5  Hill,  154.  10  Allen,  76.  1 
Daly,  71. 

(c)  Co.  Litt.  253,  b.  2  Inst.  483.  Perkins,  §  18.  1  Bl.  Com.  130.  6  East, 
126,140.  11  Mod.  203.  2  Strange,  917.  Hardin's  Rep.  605.  2  Gallison, 
337.     2  Met.  (Ky.)  447. 

{d)  2  Stark.  Ev.  (4th  Amer.  ed.)  482. 

(e)  Chit,  on  Con.  (1st  ed.)  56,  (10th  Amer.  ed.)  219. 

(/)  1  Bay,  470.     2  Bay,  211. 


z6  LAW  OF  CONTEACTS. 

deed  obtained  by  duress  of  the  grantor's  cattle,  and  not  of  his 
person,  was  avoided,  is  not  regarded  as  law.  Yet  if  one's 
goods  or  other  property  be  wrongfully  detained,  and  he  pay 
money  simply  to  obtain  possession,  and  not  by  way  of  adjust- 
ing the  matter,  he  may  recover  it  back.  See  Shaw  v.  Wood- 
cock, 7  Barn.  &  Cres.  84,  85.  3  Mees.  &  Welsh,  ubi  sup. 
Close  V.  Phipps,  7  Mann.  &  Grang.  586  and  8  Scott  N.  R.381. 
Elliott  V.  Svvartwout,  10  Peters,  137.  Cobb  v.  Charter,  32 
Conn.  358.  Chase  v.  Dwinal,  7  Greenl.  134,  and  numerous 
other  cases.  But  in  England  such  recovery  is  had  on  the 
ground  that  the  money  was  not  paid  voluntarily  but  under 
compulsion,  and  not  on  the  ground  that  it  was  paid  under 
duress,  as  technically  understood. "  In  this  class  of  cases,  the 
question  always  is,  whether  the  payment  was  voluntary  or  in- 
voluntary. See  cases,  in  which  payments  were  held  to  be  vol- 
untary, collected  in  Chit,  on  Con.  (10th  Amer.  ed.)  698  Sf  seq. 

This  doctrine  of  duress  may  be  summarily  stated  thus,  viz. : 
Any  agreement  made  by  a  person  under  coercion  by  illegal 
imprisonment,  or  under  illegal  force  or  privation  imposed 
on  him  while  legally  restrained,  or  under  threats  which  in- 
duce a  reasonable  fear  of  loss  of  life,  or  of  mayhem,  or  of  un- 
lawful imprisonment,  are  not  binding  and  may  be  avoided. 

Those  contracts  only  that  are  made  under  fear  of  unlawful 
imprisonment,  and  not  those  made  under  fear  of  imprison- 
ment which  would  be  legally  justifiable,  can  be  avoided  for 
duress,  [a) 

This  limited  sphere  for  the  operation  of  the  doctrine  is 
characteristic  of  the  age  in  which  it  was  thus  limited ;  an 
age  in  which  personal  valor  was  deemed  to  be  in  a  great 
measure  its  own  reward,  and  when  he  who  chose  to  resort 
to  the  law  for  redress  of  minor  injuries  was  regarded  as  homo 
vanus  et  meticulosus.  A  high  regard,  however,  for  personal 
liberty  is  evinced  by  the  effect  which  is  allowed  to  fear  of 
restraint,  while  it  is  denied  to  fear  of  the  most  serious  injury 
to  property.     Lord   Coke  says  (2  Inst.  483)  "  it  is  observable 

(a)  Wilcox  V.  Howland,  23  Pick.  167.  Eddy  v.  Herrin,  17  Maine,  338. 
Alexander  v.  Pierce,  10  N.  Hamp.  494.  Nealley  v.  Greenough,  5  Foster, 
832. 


DURESS.  27 

how  fear  of  imprisonment  is  more  grievous  and  odious  in 
law,  than  the  fear  of  battery."  (a) 

There  are  numerous  instances  in  which  a  court  of  chan- 
cery reUeves  against  contracts  entered  into  by  a  compulsion 
that  is  not  sufficient  to  avoid  them  at  law.  These  cases, 
however,  are  decided,  each  on  its  peculiar  circumstances,  and 
are  not  properly  within  the  scope  of  the  present  examination. 
So  a  will  (which  is  not  strictly  a  contract)  may  be  avoided 
on  the  ground  of  undue  influence  and  restraint  exercised 
upon  the  testator,  though  not  amounting  to  duress  that 
would  avoid  his  bond  or  note.  It  is  said  in  an  old  case,  (b) 
that  if  a  man  makes  a'  will  in  his  sickness,  by  the  over  im- 
portunity of  his  wife,  to  the  end  he  may  be  quiet,  it  shall  be 
set  aside  as  made  by  restraint.  This  is  not  now  regarded  as 
law ;  but  importunity  (legally  taken)  "  must  be  in  such  a 
degree  as  to  take  away  from  the  testator  free  agency."  It 
must  be  such  as  he  is  too  weak  to  resist,  "  such  as  will  ren- 
der the  act  no  longer  the  act  of  the  deceased."  (c) 

The  duress  that  will  avoid  a  contract  must  be  done  to  the 
party  himself.  If,  therefore,  two  or  more  make  an  obligation 
by  reason  of  duress  to  one  of  them  only,  it  can  be  avoided 
only  by  him  upon  whom  the  duress  was  practised.  A  surety 
is  held  to  perform  the  engagement  made  by  himself  and  prin- 
cipal, though  it  was  made  solely  to  relieve  the  principal  from 
duress,  (d)  This  rule  of  law,  however,  was  held,  in  Thomp- 
son V.  Lockwood,  15  Johns.  256,  not  to  be  applicable  to  a 
surety  who  had  executed  a  bond  to  a  sheriff,  which  the  sheriff 
had  no  authority  to  require  of  the  principal,  and  which  a 
statute  had  declared  should  be  void.     The  decision  was  rested 

(a)  In  Foshay  v.  Ferguson,  5  Hill,  158,  Bronson,  J.,  said  he  entertained 
no  doubt  that  a  contract  procured  by  threats  and  fear  of  battery,  or  the  de- 
struction of  property,  might  be  avoided  on  the  ground  of  duress. 

(h)  Hacker  v.  Newborn,  Style,  427. 

(e)  By  Sir  John  NichoU,  in  Kinleside  v.  Harrison,  2  Phillitnore,  551. 

(d)  Shep.  Touch.  62.  Mantel  v.  Gibbs,  1  Brownlow,  64.  Huscombe  v. 
Standing,  Cro.  Jac.  187.  Wayne  v.  Sands,  1  Freeman,  351.  Simms  v. 
Barefoot's  Ex'ors,  2  Haywood,  402.  Jones  v.  Turner,  5  Littell,  147.  Kobin- 
son  u.  Gould,  11  Gush.  55.  M'Clintick  v.  Cummins,  SM'Lean,  158.  The 
contrary  was  held  in  Evans  v.  Huey,  1  Bay,  13. 


28  LAW  OF   CONTRACTS. 

on  the  statute  and  not  on  the  common  law.  But  in  United 
States  V.  Tingey,  5  Peters,  115,  and  Boston  v.  Capen,  7  Cush. 
146,  it  was  decided  that,  at  common  law,  a  bond  exacted  by 
a  public  officer,  who  had  no  authority  to  require  it,  was  void 
both  as  to  principal  and  surety.  See  also  Newcomb  v.  Wors- 
ter,  7  Allen,  198.  Commonwealth  v.  Field,  9  Allen,  584. 
Commonwealth  v.  Collins,  11  Gray,  465.  The  State  v.  Buf- 
fum,  2  Foster,  267.    Billings  v.  Avery,  7  Conn.  236. 

Husband  and  wife  are  regarded  in  law,  for  most  purposes, 
as  one  person.  An  obligation,  therefore,  made  by  the  husband, 
to  relieve  the  wife  from  duress,  may  be  avoided,  as  if  the 
duress  had  been  done  to  himself,  (a)  But  in  no  other  case 
can  a  man  avoid  his  deed  by  duress  to  another,  let  him  be  re- 
lated how  he  will,  (b) 

It  is  said  in  some  of  the  old  books,  that  duress  by  a 
stranger  to  the  deed,  unless  practised  at  the  instance  of  the 
obligee,  will  not  avoid  the  deed,  (c)  But  the  better  opinion  is, 
that  a  deed  so  procured  is  void  as  to  the  party  to  whom  it  is 
made.  "  If  one  threaten  a  man  to  kill  him,  unless  he  will 
seal  a  deed  to  him  and  three  others,  and  he  do  so,  this  is  void 
as  to  all  the  four.  For  if  one  threaten  another  to  kill  or  maim 
him,  if  he  will  not  seal  a  deed  to  a  stranger,  and  thereupon  he 

(a)  1  Sid.  123.  Shep.  Touch.  61.  2  Brownlow,  276.  Bac.  Ab.  Duress, 
B.  In  Eadie  v.  Slimmon,  26  N.  Y.  Rep.  9,  the  New  York  court  of  appeals 
decided  that  greatly  terrifying  a  woman,  by  threats  of  prosecuting  her  hus- 
band for  alleged  embezzlement,  is  such  coercion  as  to  avoid  a  transfer  of  her 
separate  property  thus  obtained.     And  see  10  INIin.  448, 

(b)  So  says  Twisden,  J.  (1  Freeman,  351),  and  so  it  is  expressly  laid  down 
in  Shep.  Touch.  61.  Such,  doubtless,  is  the  weight  of  authority.  In  a  case 
in  North  Carolina  (2  Haywood,  402),  a  bond  executed  by  a  mother,  to  pro- 
cure the  enlargement  of  her  son,  who  was  under  duress,  was  held  to  be  binding 
on  her.  There  are  authorities,  however,  which  countenance  a  more  liberal 
extension  of  the  doctrine  of  duress.  Wylde,  J.,  says  (1  Freeman,  351)  "If 
the  duress  be  to  a  father  or  brother,  and  a  son  enter  into  bond,  this  is  a  du- 
ress to  the  son,  and  he  may  plead  it."  So  it  is  said  (2  Brownlow,  276)  that  a 
father  may  avoid  his  deed  that  he  hath  sealed  by  the  duress  of  the  imprison- 
ment of  his  son,  but  not  of  his  servant ;  and  that  mayor  and  commonalty 
may  avoid  a  deed  sealed  by  duress  of  imprisonment  of  the  mayor.  See  also 
1  Rol.  Ab.  687.     Bac.  Ab.  Duress,  B. 

(c)  Keilwey,  154  a. 


DUEESS.  29 

do  so,  this  is  void  as  if  it  were  to  the  party  himself."  (a)  And 
suoh  is  the  rule  of  the  civil  law.  (b)  It  has  been  held,  from 
the  earliest  times,  that  duress  irnposed  by  a  stranger  to  the 
contract,  if  by  the  procurement  of  the  party  to  be  benefited, 
will  vitiate  it.  (c) 

A  party  who  has  made  a  contract  while  under  duress 
may,  by  his  subsequent  conduct,  render  it  valid  or  estop  him- 
self to  deny  its  validity.  As  if  one  makes  an  obligation  by 
duress,  and  afterwards,  when  he  is  at  liberty,  takes  a  defea- 
sance upon  it.  (d)  So  if  a  man  acknowledges  a  bargain  and 
sale  of  lands,  &c.  (in  England),  in  the  court  where  the  deed 
is  to  be  enrolled,  or  before  the  officer  who  makes  the  enroll- 
ment, and  it  is  enrolled,  he  cannot  afterwards  plead  duress,  (e) 
And  where  a  feme  covert  acknowledges  a  deed  executed  by 
her,  on  a  private  examination  before  a  magistrate,  it  can- 
not be  avoided  for  duress.  (/)  In  these  instances,  an  actual 
inquiry  is  instituted  concerning  the  will  of  the  party.  But  in 
Massachusetts,  acknowledging  a  deed  is  regarded  as  of  such 
trivial  importance,  that  it  does  not  estop  the  party  nor  his 
heirs  to  avoid  it  for  duress,  (g)  It  was  always  held,  however, 
that  if  a  party  under  duress  promises,  for  the  purpose  of  re- 
gaining his  liberty,  to  execute  a  bond  org)ther  instrument,  and 
afterwards,  while  at  large,  performs  his  promise,  it  is  never- 
theless avoidable,  (h) 

A  marriage  contract  obtained  by  duress  may  also  be 
avoided,  though  celebrated  by  religious  rites  in  facie  ecclesics. 
Indeed,  the  marriage  contract,  as  it  is  governed  in  many  re- 
spects by  the  ecclesiastical  and  statute  law  in  England,  is 
often  annulled  for  causes  which,  though  analogous  to  duress 
by  the  common  law,  do  not  range  under  that  head. 

By  the  civil  law,  the  party  who  entered  into  a  contract 
while  under  duress  was  compeUed  to  institute  a  process  of 

(a)  Shep.  Touch.  61.     Jacob's  Law  Diet.  Duress. 

(V)  Heinec.  Elem.  s.  o.  Pand.  lib.  iv.  tit.  2.  (c)  1  Rol.  Ab.  688. 

\d)  Shep.  Touch.  62,  288. 

(e)  1  Rol.  Ab.  862.     Bac.  Ab.  Duress,  C. 

(/)  Bissett  V.  Bissett,  1  Harr.  &  M'Hen.  211.     But  see  18  Maryl.  319. 

(jg)  Worcester  v.  Eaton,  13  Mass.  371. 

Qi)  Keilwey,  52  b.     Shep.  Touch.  61,     Finch,  10. 


30  LAW   OP   CONTRACTS. 

rescission  within  ten  years,  or  he  would  have  been  held  to 
perform  it.  (a)  By  the  common  law,  the  party  may  avoid 
such  contract  by  pleading  duress,  or  giving  it  in  evidence, 
when  sued  for  breach  of  the  contract. 

On  a  retrospect  of  the  common  law  doctrine  of  duress,  it 
will  occur  to  every  mind,  that  its  operation  is  confined  within 
narrow  and  somewhat  arbitrary  limits,  and  is  by  no  means 
co-extensive  with  the  principles  of  natural  law,  as  expounded 
by  the  most  approved  writers,  (b) 

Assent  must  be  not  only  mutual  and  free,  but  must  also  be 
without  error  respecting  the  subject  of  agreement.  By  the 
civil  law,  "  error  annuls  the  agreement,  not  only  when  it 
affects  the  identity  of  the  subject,  but  also  when  it  affects  that 
quality  of  the  subject  which  the  parties  have  principally  in 
contemplation,  and  which  makes  the  substance  of  it."  (c) 
This,  which  is  called  error  by  the  civilians,  is  in  the  common 
law  usually  denominated  mistake ;  the  word  error  having  a 
technical  meaning  of  a  very  different  kind,  and  being  there- 
fore seldom  used  in  its  popular  sense  by  legal  writers.  In 
both  systems,  the  integrity  of  the  contracting  parties  is  as- 
sumed ;  for,  if  intenijional  deception  be  practised  by  either 
party,  it  is  termed  fraud,  dolus  malus.  The  rule  of  the  civil 
and  common  law  is  the  same,  so  far  as  it  regards  the  identity 
of  the  subject  of  the  agreement. 

Where  the  subject  of  the  agreement  is  the  person,  or  where 
a  consideration  of  the  person  with  whom  an  agreement  is 
made  forms  an  ingredient  of  the  agreement,  a  mistake  respect- 
ing the  person  destroys  assent  and  annuls  the  agreement,  {d) 

(a)  This  process  is  somewhat  analogous  to  an  application  to  a  court  of 
equity  for  relief. 

{b)  See  Grotius,  lib.  ii.  c.  11,  12.  Grebner,  Jus  Nat.  Pars  ii.  §  1,  c.  7. 
Puffendorf,  lib.  iii.  c.  4-9.  Heinec.  Jus  Nat.  et  Gent.  lib.  i.  c.  14, 15.  Hutche- 
son's  Mor.  Philos.  lib.  ii.  c.  9.     Rutherforth,  lib.  i.  c.  12,  §  16. 

(c)  1  Poth.  on  Obi.  by  Evans,  (1st  Amer.  ed.)  11  ;    (3d  Amer.  ed).  113. 
Error  consensu!  obstat.    Si  enim  in  re  erro,  non  in  illam  sane  consentio,  sed 

in  aliam,  quae  turn  menti  mea  obversabatur.  Heinec.  Recit.  475.  Elem.  s.  o. 
Inst.  lib.  iii.  tit.  24.  Ea  non  libere  velle  possumus,  circa  quae  errore  ducimur. 
Grebner,  supra. 

(d)  1  Poth.  on  Obi.  by  Evans,  (1st  Amer.  ed.)  12,  (3d  Amer.  ed.)  114. 


MISTAKE.  31 

As  if  a  man,  intending  to  make  a  gift  or  loan  to  one,  gives  or 
lends  to  another,  mistaking  him  for  the  first,  the  gift  or  loan  is 
void  for  want  of  assent.  So  of  a  sale  on  credit,  or  an  agree- 
ment to  sell  on  credit  to  one  person,  mistaking  him  for  another. 
So  also  of  a  promise  of  marriage.  Such  cases,  however,  can 
seldom  occur  ;  and  the  rule  is  of  little  practical  importance.  In 
almost  all  instances  of  misapprehension  of  the  person,  there 
is  fraud,  which  is  a  distinct  ground  of  avoiding  contracts. 

Where  a  mistake  occurs  respecting  the  identity  of  the  sub- 
ject of  the  agreement,  assent  is  not  given,  and  the  contract 
of  course  is  void ;  as  where  a  contract  was  for  lime  in  casks, 
and  the  casks  were  found  to  contain  sand  and  stones,  (a)  So 
where  counterfeit  coins  or  notes  are  taken  and  passed  as  gen- 
uine, (b)  If,  however,  certain  coins  or  notes  are  specifically 
agreed  to  be  received,  it  is  not  regarded  as  a  bargain  for  cash  ; 
and  if  they  prove  to  be  spurious,  the  loss  falls  on  the  holder. 
The  party  receiving  them  is  understood  to  take  the  risk,  and 
there  is  no  mistake  as  to  the  identity  of  the  subject,  (c) 
And  in  some  cases,  negligence  in  the  party  receiving  worth- 
less coin  or  notes  will  fix  the  loss  on  him ;  {d}  as  if  a  party 
do  not  seasonably  return  them,  or  if  he  pay  a  note  forged 
against  himself,  (e) 

Pothier  gives,  as  an  instance  of  error  in  the  identity  of  the 
subject  of  the  contract,  which  renders  it  void  for  want  of 
assent,  the  purchase  of  candlesticks  as  silver  which  are  only 
plated.  But  in  the  case  of  Chandelor  v.  Lopus,  (/)  the  con- 
trary was  held  by  all  the  judges  of  England,  except  one,  in 

(a)  Conner  v.  Henderson,  15  Mass.  319.     Gardner  v.  Lane,  9  Allen,  492. 

(6)  Young  V.  Adams,  6  Mass.  182.  Ellis  v.  Wild,  ib.  321.  Markle  v.  Hat- 
field,  2  Johns.  455.  Jones  v.  Ryde,  5  Taunt.  488.  Eagle  Bank  v.  Smith,  5 
Conn.  71.  Thomas  v.  Todd,  6  Hill,  340.  Pindall's  Ex'ors  v.  N.  Western 
Bank,  7  Leigh,  617.     Gurney  v.  Womersley,  4  El.  &  Bl.  133. 

(c)  Alexander  v.  Owen,  1  T.  R.  225.  Ellis  v.  Wild,  ubisup.  Merriam  v. 
Wolcott,  3  Allen,  258,  where  one  point  decided  in  6  Mass.  321,  was  denied 
to  be  law. 

(cO  17  Mass.  1,  33.     10  Wheaton,  333. 

(e)  Price  v.  Neal,  3  Bur.  1354.  Levy  v.  Bank  of  United  States,  4  Dallas, 
234. 

(/)  Cro.  Jac.  4. 


32  LAW   OF   CONTEACTS. 

the  case  of  a  stone  bought  and  sold  as  a  bezoar-stone,  which 
proved  to  be  of  some  other  species  less  valuable.  Parker, 
C.  J.,  says,  (a)  that  this  case  "  would  not  now  be  received  as 
law  in  England,  certainly  not  in  our  country."  Probably, 
however,  he  questioned  the  case  on  different  grounds  from 
that  which  we  are  now  considering;  and  the  current  of  decis- 
ions at  common  law,  both  here  and  in  England,  runs  very 
strongly  against  Pothier's  doctrine,  as  applied  in  the  instance 
just  mentioned.  By  those  decisions,  that  instance  ranges 
under  the  head  of  mistakes  that  affect  the  quality  of  the  sub- 
ject of  agreement,  as  to  which  the  civil  and  common  law  are 
totally  different.  Mr.  Evans,  in  a  note  to  his  edition  of 
Pothier,  (1st  Amer.  ed.)  13,  mentions,  as  a  case  of  error  in  the 
subject  of  the  contract,  that  a  painting  was  sold  as  an  original 
of  Poussin,  but  it  appearing  afterwards  to  be  the  work  of 
some  other  person,  it  was  held  that  the  sale  was  void,  and  the 
purchaser  entitled  to  reclaim  his  money.  This,  if  (as  it  seems 
to  have  been)  a  case  in  the  English  courts,  is  directly  im- 
pugned by  the  case  of  Jendwine  v.  Slade,  [b)  and  is  at  vari- 
ance with  the  principles  of  numerous  adjudications,  (c) 

As  to  mistake  or  error,  which  affects  the  quality  of  the  sub- 
ject of  agreement,  whether  the  error  be  what  the  civilians  term 
essential,  which  annuls  a  contract,  or  accidental,  which  only 
gives  a  right  of  action  for  damages,  there  is,  as  before  sug- 
gested, no  similarity  in  the  civil  and  common  law.  By  the 
principles  of  the  common  law,  so  far  as  they  apply  to  con- 
tracts of  sale,  a  purchaser  has  no  remedy  against  the  seller 
for  any  defect  in  the  quality  of  the  article  sold,  unless  the 
seller  is  guilty  of  fraud,  or  makes  a  warranty  upon  the  sale. 
There  is,  perhaps,  room  for  doubt  whether  there  is  not  an  ex- 
ception to  this  rule,  in  the  case  of  a  sale  of  provisions.  But 
this  point,  as  well  as  the  whole  doctrine,  belongs  to  the  subject 
of  the  sale  of  ^personal  property,  rather  than  to  that  of  con- 
tracts generally. 

Assent  must  be  given  without  fraud,  on  the  part  of  him 

(a)  13  Mass.  143.  (b)  2  Esp.  R.  572. 

(c)  See  Hill  v.  Gray,  1  Stark.  R.  434.     Tucker  v.  Woods,  12  Johns.  190. 


FRAUD.  $8 

who  procures  it,  as  well  as  without  mistake  respecting  the 
subject  of  the  agreement.  Fraud  avoids  all  contracts,  ab  initio, 
both  at  law  and  in  equity ;  the  assent  essential  to  a  contract 
not  being  honestly  obtained.  The  civil  law  definition  of 
fraud,  dolus,  is  "  omnis  calliditas,  fallacia,  machinatio,  ad 
decipiendum,  fallendum,  circumveniendum  alterum  adhibita.'' 
No  precise  definition  is  found,  in  the  books  of  common 
law,  of  the  term  fraud  ;  but  it  is  usually  described  in  nearly 
the  same  manner  as  by  the  civilians  ;  and  is  said  to  involve 
some  artful  device,  or  deceitful  practice,  contrary  to  the  plain 
rules  of  common  honesty,  whereby  a  man  is  cheated  and  de- 
prived of  his  right.  It  will  be  found,  however,  that  on  many 
subjects  of  contract,  the  civil  and  common  law  regard  the 
same  conduct  in  a  very  different  light. 

There  are  numerous  fraudulent  devices  and  practices,  by 
which  one  party  to  a  contract  deceives  and  injures  the  other. 
In  general,  such  fraud  consists  of  misrepresentation  or  con- 
cealment of  material  facts,  suggestio  falsi  ant  supjyressio  veri. 
As  the  question  of  fraud,  or  no  fraud,  depends  on  the  particu- 
lar facts  of  each  case,  the  relative  situation  of  the  parties,  and 
their  capacities  and  means  of  information,  it  is  not  easy  to 
lay  down,  with  precision,  any  general,  elementary  doctrine, 
which  would  not  tend  rather  to  mislead  than  to  enlighten 
and  dii-ect.  Besides  ;  as  it  is  not  the  moral  quality  of  an 
act  or  omission  which  alone  determines  its  legal  quality 
and  effect,  there  are  in  the  making  of  contracts  certain  acts 
and  omissions  which  writers  on  ethics  pronounce  immoral, 
but  which  are  held  to  be  legally  allowable,  and  not  within  the 
cognizance  of  the  law.  Most  intentional  falsehoods  are  re- 
garded as  fraudulent  and  the  subject  of  legal  redress,  when  they 
induce  the  party,  to  whom  they  are  told,  to  do  or  omit  to  do 
something  which  he  would  not  otherwise  have  done  or  omitted, 
whereby  his  interests  are  injuriously  affected.  But  the  rule  of 
the  civil  law,  simplex  commendatio  non  obligat,  prevails  in  our 
law.  And  if  a  seller  merely  use  those  expressions  which  are  -■ 
usual  with  sellers  who  praise  at  random  goods  which  they  are 
desirous  to  sell,  the  buyer  ought  not  to  rely  on  those  expres- 
sions ;  and  though  he  was  thereby  induced  to  buy,  and  was 
3 


34  LAW   OF    CONTRACTS. 

deceived,  he  has  no  remedy.  Such  are  assertions,  by  the 
seller,  of  the  value  of  the  subject  of  sale,  the  price  which  he 
paid  for  it,  the  offers  which  he  has  received  for  it,  and  the  like. 
This  is  termed  "  dealing  talk,"  and  is  used,  more  or  less,  by 
sellers  generally,  and  seems  to  have  been  matter  of  distrust 
and  not  of  confidence,  long  before  the  existence  of  our  com- 
mon law.  (a) 

Multa  fidem  promissa  levant,  ubi  plenius  sequo 
Laudat  venales,  qui  vult  extrudere  merces. 

So  of  untrue  assertions  of  the  buyer  as  to  the  highest  price 
which  he  is  authorized  to  give,  and  of  the  value  of  the  prop- 
erty that  he  buys,  (b)  So  if  the  buyer  of  personal  property 
has  private  information  of  some  extrinsic  fact  or  event  which 
materially  affects  its  market  value,  he  is  not  legally  bound  to 
disclose  such  information  to  the  seller.  Thus  where  a  party 
knew  of  the  peace  of  1815,  which  greatly  raised  the  price  of 
tobacco  at  New  Orleans,  and  he  bought  a  large  quantity  of  it, 
concealing  his  knowledge  from  the  seller,  who  had  not  heard 
the  news  of  peace,  the  supreme  court  of  the  United  States 
decided  that  he  was  not  legally  bound  to  communicate  his 
knowledge  to  the  seller ;  that  mere  silence  was  not  a  legal 
fraud,  (c)  And  it  was  said  by  Lord  Thurlow,  that  if  "  A., 
knowing  there  to  be  a  mine  in  the  estate  of  B.,  of  which  he 
knew  B.  was  ignorant,  should  enter  into  a  contract  to  purchase 

(a)  Sugd.  on  Vend.  3.  Oliphant  on  Horses,  83.  Addison  on  Con.  (2d  ed.) 
129.  Broom's  Maxims,  (3d  ed.)  701.  6  Met.  259,  260.  Harvey  v.  Young, 
Yelv.  21.  Onslow's  Nisi  Prius,  28.  Eoberts  on  Fraudulent  Conveyances,  524. 
Moore  v.  Turbeville,  2  Bibb,  602.  Saunders  v.  Hatterman,  2  Ired,  32.  Davis 
V.  Sims,  Hill  &  Denio,  234.  Page  v.  Parker,  43  N.  Hamp.  368.  Veasey  v. 
Doton,  3  Allen,  380,  and  cases  there  cited.  Hemmer  v.  Cooper,  8  Allen,  334. 
Geddes  v.  Pennington,  5  Dow,  1 64.  Phipps  v.  Buckman,  30  Penn.  State  Rep. 
401. 

(6)  Vernon  v.  Keys,  12  East,  632.  Humphrey  v.  Haskell,  7  Allen,  497. 
1  Story  on  Eq.  §  199.     Barlow  v.  Wiley,  3  A.  K.  Marsh.  457. 

(c)  Laidlaw  v.  Organ,  2  Wheat.  178.  See  Mr.  Verplanck's  examination 
of  this  case,  in  his  Essay  on  the  Doctrine  of  Contracts  and  how  they  are 
affected  by  Concealment,  &c.  See  also  Frazer  v.  Gervais,  Walker,  72,  in 
which  the  supreme  court  of  Mississippi  denied  the  doctrine  in  2  Wheat. ;  but 
Gibson,  C.  J.,  recognized  it  in  Kintzing  v.  McElrath,  5  Barr,  467. 


FRAUD.  35 

the  estate  of  B.  for  the  price  of  the  estate,  without  considering 
the  mine,"  the  court  would  not  set  the  contract  aside,  (a) 
"  But,"  says  Lord  Eldon,  "  a  very  little  is  sufficient  to  affect 
the  application  of  that  principle.  K  a  word,  if  a  single  word, 
be  dropped  which  tends  to  mislead  the  vendor,  that  principle 
will  not  be  allowed  to  operate."  (b)  In  cases  of  the  seller's 
concealment  of  intrinsic  defects  in  personal  property  which 
are  known  to  him  but  not  discoverable  by  the  buyer,  with  the 
use  of  proper  diligence,  the  contract  of  sale  is  held  to  be 
fraudulent  and  avoidable,  (c)  "  In  contracts  for  the  letting 
and  hiring  of  realty,  the  lessor  is  not  bound  to  disclose  to  the 
lessee  latent  defects  interfering  with  the  use  and  enjoyment 
of  the  property  let  to  hire."  (d) 

Those  kinds  of  fraud,  which  avoid  contracts,  not  on  the 
ground  of  defective  assent,  or  assent  fraudulently  obtained 
from  one  party  by  the  other,  but  because  the  contracts  them- 
selves injuriously  affect  third  persons  or  the  public,  have  no 
bearing  on  this  part  of  the  law  of  contracts. 

There  is  the  same  difference  between  the  common  and  civil 
law,  as  to  the  mode  of  avoiding  contracts  made  under  a 
fraudulent  imposition,  which  was  mentioned  under  the  head 
of  duress,  viz. :  showing  the  fraud  on  a  trial  by  the  common 
law,  and  a  process  of  rescission  by  the  civil. 

(a)  Fox  V.  Mackreth,  2  Bro.  C.  C.  420  and  2  Cox,  320.  See  also  1  Story 
on  Eq.  §§  204-208.  2  Kent  Com.  (10th  ed.)  672.  Harris  v.  Tyson,  24  Penn, 
State  Rep.  347. 

(b)  Turner  o.  Harvey,  Jacob,  178.  See  also  Prescott  v.  Wright,  4  Gray, 
464. 

(c)  Story  on  Sales  (Perkins's  ed.)  §  179,  and  authorities  there  cited.  Ham- 
mond's Nisi  Prius,  294.  Addison  on  Con.  (2d  ed.)  133.  Horsfall  v.  Thomas, 
1  Hurlst.  &  Coltm.  100.  1  Story  on  Eq.  (8th  ed.)  §  212  a.  1  Bell  Com.  175. 
Paddock  v.  Strobridge,  29  Verm.  470.    Shaw  on  Obligations,  51. 

((/)  Addison  on  Con.  (2d  ed.)  134.  See  Foster  v.  Peyser,  9  Cush.  242.  1 
Washburn  on  Real  Property,  (1st  ed.)  349. 


CHAPTER   II. 

OF   PAETIES   TO   CONTRACTS. 

Mutual  assent  presupposes  parties  capable  of  assenting. 
Capacity  to  contract  is  of  two  kinds,  natural  and  legal,  and 
these  must,  in  general,  concur  in  both  parties.  By  natural 
capacity  is  meant  a  competent  measure  of  mental  power. 
Legal  capacity  includes  natural,  and  also  the  permission  of 
the  law  to  exercise  it. 

The  subject  of  the  parties  to  contracts  will  be  considered 
under  the  several  divisions  of,  1,  infants  ;  2,  non  compotes  men- 
tis;  3,  drunkards  ;  4,  married  women  ;  5,  outlaws  and  persons 
attainted ;  6,  persons  excommunicated ;  7,  aliens ;  8,  spend- 
thrifts ;  9,  slaves  ;  10,  seamen  ;  11,  attorneys  and  other  agents; 
12,  partners  ;  13,  executors  and  administrators ;  14,  guardi- 
ans ;  and,  15,  corporations. 

1.  Infants. 

Infants  are  incapable  of  making  contracts ;  and  their  in- 
capacity is  partly  natural  and  partly  legal.  In  deciding  on 
their  agreements,  the  actual  state  of  their  capacities  is  not 
considered. 

By  the  common  law,  every  person  is,  technically,  an  infant, 
until  he  is  twenty-one  years  old ;  and,  in  legal  presumption,  is 
not  of  sufficient  discretion  to  contract  an  obligation  at  an 
earlier  age.  (a) 

As  some  acquire  maturity  of  judgment  much  sooner  than 
others,  it  is  obviously  impossible  to  determine  by  any  univer- 
sal rule,  how  long  young  persons  remain  incapable  of  making 
a  binding  contract;  and  it  is,  therefore,  as  PufFendorf  remarks, 
a  plain  direction  of  natural  law,  that  this  subject  should  be 

(a)  Co.  Lit.  171b. 


INFANTS.  37 

regulated  by  the  positive  institutions  of  society.  Accordingly, 
it  is  found  that  almost  all  states  have  fixed  a  period  at  which 
legal  capacity  commences,  and  this,  earlier  or  later,  according 
to  the  character  of  the  people  and  the  nature  of  the  business 
to  be  transacted. 

By  the  early  Roman  law,  full  age,  in  matters  of  contract, 
was  twenty -five  years  ;  but  by  the  later  law  it  was  twenty-one 
years,  (a)  The  ancient  Germans  fixed  the  period  of  mature 
age  principally  with  reference  to  the  state  of  the  body,  espe- 
cially its  fitness  for  military  service.  In  process  of  time  a 
certain  number  of  years  was,  by  divers  special  laws,  made  the 
standard  of  maturity  for  various  purposes,  until  at  length  the 
age  of  twenty-one  became,  generally,  "  matura  Germanorum 
aBtas."(&) 

Some  writers  suppose  the  period  of  twenty-one  years  was 
adopted  by  the  common  law  from  the  old  Saxon  constitutions 
on  the  continent,  which  held  youth  under  tutelage  till  that 
age,  and  then  allowed  them  to  be  "  sui  juris."  Others  resort 
for  its  origin  to  the  tenure  by  knight-service,  and  the  incident 
of  that  tenure,  called  guardianship  in  chivalry.  Under  this 
system,  the  tenant,  when  twenty-one  years  old,  was  regarded 
as  capable  of  attending  his  lord  in  war,  and  was  therefore  no 
longer  in  ward.  There  is  in  the  books  much  learned  discus- 
sion of  the  origin  of  the  incidents  of  the  tenure  by  knight- 
service,  as  recognized  in  the  ancient  English  law.  While 
some  writers  derive  them  from  the  great  feudal  system  of  the 
continent,  others  ascribe  them  to  the  encroachments  of  the 
Norman  conqueror  and  his  successors,  (c)  Mr.  Hallam,  in  his 
View  of  the  Middle  Ages,  accuses  the  English  lawyers  of  an 
imperfect  acquaintance  with  the  history  of  feuds  on  the  con- 

(a)  Hutcheson's  Moral  Philosophy,  lib.  ii.  c.  9,  §  4.  In  Levi's  Manual  of 
Mercantile  Law,  44,  it  is  stated  that  "  majority  is  fixed  at  twenty-one  in  the 
United  Kingdom,  France,  the  two  Indies,  Sardinia,  Bavaria,  Saxony,  Russia, 
and  the  United  States ;  at  twenty-three  in  Holland  ;  at  twenty-four  in  Aus- 
tria and  Prussia  ;  at  twenty-five  in  Denmark,  Spain,  Portugal,  and  in  the 
Cape  of  Good  Hope." 

(b)  Putteri   El.  Juris  Germ.  Prlv.  Hod.  §  198  &  nota. 

(c)  See  Mr.  Butler's  note  to  Co.  Lit.  191.  2  Bl.  Com.  c.  5.  Sullivan's 
Lectures,  xi.  &  xii. 


38  LAW  OF   CONTRACTS. 

tinent,  and  denies  that  wardship,  &c.,  formed  any  part  of  the 
continental  system,  or  sprang  from  the  relation  between  lord 
and  vassal,  as  it  existed  under  that  system.  However  this 
may  be,  it  is  very  evident  that  the  period  of  full  age,  in  our 
law,  like  many  other  important  parts  of  our  legal  system,  is 
of  German  origin. 

As  the  common  law  generally  makes  no  fractions  of  a  day, 
a  person  is  of  full  age  on  the  day  preceding  his  twenty-first 
birthday,  (a)  Thus,  "  it  has  been  adjudged,  that  if  one  be 
born  the  first  of  February,  at  eleven  at  night,  and  the  last  of 
January,  in  the  twenty -first  year  of  his  age,  at  one  of  the 
clock  in  the  morning,  he  makes  his  will  of  land  and  dies,  't  is 
a  good  will,  for  he  was  then  of  age."  (b)  This  decision  was 
for  the  benefit  of  the  testator,  enabling  him  to  do  an  act 
that  required  full  age,  before  all  the  hours  of  twenty-one  years 
had  elapsed.  But  the  same  rule  would  doubtless  be  applied 
against  a  defendant,  who  should  attempt  to  avoid,  on  the 
ground  of  infancy,  a  contract  made  by  him  on  the  day  before 
the  twenty-first  anniversary  of  his  birth. 

Infancy  Is  a  personal  privilege,  allowed  for  protection 
against  imposition  ;  and,  in  general,  no  person  but  the  infant 
himself,  or  his  heirs  or  legal  representatives,  can  take  advan- 
tage of  it.  (c)  Therefore,  a  person  of  full  age,  who  makes  a 
contract  with  an  infant,  is  held  to  his  engagement,  if  other- 
wise valid,  and  if  the  infant  ejects  to  adhere  to  it,  though  the 
latter  may,  on  his  part,  avoid  it.  (d)  Thus,  an  infant  main- 
tained an  action  against  an  adult  for  breach  of  a  promise  of 
marriage,  although  it  was  contended  that,  as  the  plaintiff  was 

(a)  1  Wooddeson,  398. 

(h)  1  Keble,  589,  pi.  52.  1  Sid.  162.  1  Salk.  44.  2  ib.  625.  1  Ld. 
Raym.  480.  2  ib.  1096.  2  Mod.  281.  6  Mod.  260.  3  Wilsou,  274.  6 
Ind.  447.     See  1  Redfield  on  Wills,  (1st  cd.)  20,  21. 

(c)  2  Inst.  483.  1  Shower,  171.  Hose  v.  Daniel,  2  Const.  Rep.  (S.  C.)  549. 
Beeler  v.  Bullitt,  3  A.  K.  Marsh.  281.  United  States  c.  Bainbridge,  1  Ma- 
son, 71.     Ilartness  v.  Thompson,  5  Johns.  160. 

(c?)  1  Coniyn  on  Cont.  (1st  ed.)  153,  and  cases  there  cited.  Bac.  Ab.  In- 
fancy and  Age,  I.  4.  1  Sid.  41,446.  But,  as  the  remedy  is  not  mutual,  a  court 
of  chancery  will  not  decree  specific  peribrmauce  at  the  suit  of  an  infant. 
Flight  V.  Bolland,  1  Russell,  298. 


INFANTS.  89 

not  bound,  there  was  no  reciprocity,  (a)  So,  a  third  person, 
not  a  party  to  the  contract,  cannot  take  advantage  of  the 
infancy  of  one  of  the  parties.  Thus,  in  an  action  for  seduc- 
ing a  servant  from  his  master's  service,  the  defendant  cannot 
resist  the  action,  by  showing  that  the  servant  was  an  infant, 
and  therefore  not  by  law  bound  to  perform  the  contract  made 
with  the  master  for  service,  (b)  On  the  same  principle  (con- 
nected with  others),  the  acceptor  of  a  bill  of  exchange,  or  the 
maker  of  a  promissory  note,  cannot  resist  payment  in  a  suit 
by  an  indorsee,  though  the  indorser  be  an  infant,  (c) 

These  and  similar  decisions  proceed  on  the  principle,  now 
well  established,  that  the  contracts  of  infants  are  generally 
voidable  and  not  void ;  by  which  is  meant,  that  it  is  at  their 
election,  and  theirs  only,  whether  they  will  perform  their  con- 
tracts ;  and  that,  on  their  arriving  at  full  age,  they  may  ratify 
and  render  them  obligatory,  without  any  new  consideration  to 
support  them.  Any  contract,  therefore,  which  is  void,  and  not 
merely  voidable  at  the  infant's  election,  is  not  binding  on  the 
adult  contractor,  and  may  be  treated  as  a  nullity  by  third 
persons.  Nor  will  the  courts,  by  virtue  of  their  equitable  juris- 
diction, confirm  such  a  contract,  nor  prohibit  the  infant  to 
avoid  it.  (d) 

There  is  confusion  in  the  older  books,  on  the  question, 
what  acts  of  infants  shall  be  regarded  as  void,  and  what  only 
voidable,  (e)  There  is  one  result,  however,  in  which  most  of 
the  older  cases  agree  ;  that  whenever  the  act  done  mai/  be  for 
the  infant's  benefit,  it  shall  not  be  considered  as  void,  but  he 
shall  have  his  election^  when  he  comes  of  age,  to  affirm  or 
avoid  it.  This  is  perhaps  the  only  clear  and  intelligible  prop- 
osition which  can   be  extracted  from  the  earlier  authorities ; 

(a)  Holt  V.  Ward,  2  Strange,  937  and  Fitzg.  175,  275.  1  Salk.  24.  See 
also  Warwick  v.  Bruce,  2  M.  &  S.  205  and  6  Taunton,  118.    5  Cowen,  475. 

(b)  Keane  v.  Boycott,  2  H.  Bl.  511.     Ashcroft  v.  Bertles,  6  T.  R.  652. 

(c)  Taylor  v.  Croker,  4  Esp.  R.  187.  Grey  v.  Cooper,  3  Doug.  65. 
Jones  V.  Darch,  4  Price,  300.  Nightingale  v.  Withington,  15  Mass.  273. 
Hardy  v.  Waters,  38  Maine,  450.     Frazier  v.  Massey,  14  lud.  382. 

((/)  Saunderson  v.  Marr,  1  H.  Bl.  75. 

(e)  See  Perkins,  §  12  ef  seq.  Shep.  Touch.  232.  Bac.  Ab.  Infancy  and 
Age,  I.  3  ;  and  cases  cited  in  Zouch  v.  Parsons,  3  Bur.  1794. 


40  LAW   OF   CONTRACTS. 

and,  in  some  cases  that  may  arise,  even  this  is  not  of  easy 
application,  (a)  And  this  rule  has  been  questioned  and  pro- 
nounced unsatisfactory  by  some  of  the  courts  of  this  country. 
See  1  Amer.  Lead.  Cas.  (4th  ed.)  242,  243,  247,  248,  249.  It 
will  be  seen  in  the  following  pages  that  the  strong  tendency 
of  the  English  as  well  as  the  American  courts  is  to  regard  all 
contracts  of  infants  as  voidable  only.  Bing.  on  Infancy  (Ben- 
nett's ed.)  11,  note.  In  the  Amer.  Lead.  Cas.  supra,  the 
editors  express  the  opinion  that  an  infant's  appointment  of  an 
attorney  may  well  be  deemed  void.  See  Cumraings  v.  Powell, 
8  Texas,  87. 

It  is  held  that  an  infant  may  purchase  land ;  for,  says 
Lord  Coke,  "  it  is  intended  for  his  benefit,  and  at  his  full  age 
he  may  either  agree  thereunto  and  perfect  it,  or,  without  any 
cause  to  be  alleged,  wave  or  disagree  to  the  purchase."  (6) 
For  the  same  reason  (among  others)  his  feoffment,  or  other 
conveyance  of  land,  is  not  void,  but  voidable  only,  (c)  An 
infant's  bond  with  a  penalty,  and  for  the  payment  of  inter- 
est, is  held  by  the  English  courts  to  be  void  on  the  ground 
that  it  cannot  be  for  his  benefit,  {d)  But  in  Bradley  v.  Pratt, 
23  Verm.  378,  it  was  decided  that  there  is  no  general  rule 
in  this  country  exempting  him  from  paying  interest,  as  neces- 
sarily injurious  to  him.  Yet  a  bond  executed  by  him  as 
surety  has  been  considered  void,  {e)  as  not  being  possibly  for 
his  benefit.  A  release  by  him  to  his  guardian,  as  it  affords 
more  protection  than  a  receipt,  is  held  to  be  void.  (/)  Parker, 
C.  J.,  supposes  that  all  simple  contracts  made  by  an  infant  are 

(a)  See  3  Bur.  1808.  13  Mass.  239.  14  Mass.  462.  1  Story  on  Eq.  §§  240, 
241.    2  Kent  Com.  (6th  ed.)  234,  (11th  ed.)  256. 

(6)  Co.  Lit.  2  b.    11  Johns.  543. 

(c)  Perkins,  §  13.  3  Bur.  1805,  1808.  14  Johns.  126.  Doctor  and  Student, 
(16thed.)62.  5Yerg.41.  2  Overton,  431.  1  N.  Hanip.  73.  As  to  an  infant's 
conveyance  by  lease  and  release,  see  Zouch  v.  Parsons,  3  Bur.  1 794  ;  though 
this  decision  has  been  much  quarrelled  with,  it  was  fully  approved  by  Chancellor 
Sugden,  in  Allen  v.  Allen,  2  Dru.  &  War.  340  and  1  Con.  &  Law.  452. 

{(l)  Fisher  v.  Mowbray,  8  East,  330.  Hunter  v.  Agncw,  1  Fox  &  Smith,  15. 
Baylis  V.  Dineley,  3  M.  &  S.  477. 

(e)   See  2  Call,  (1st  ed.)  70.    3  Desaus.   482.      6  Mich.  220. 

(/)  Fridge  v.  The  State,  3  Gill  &  Johns.  115. 


INFANTS.  41 

voidable  only,  (a)  But  it  has  been  decided,  that  his  parol 
promise  (promissory  note),  as  surety,  is  void,  (b)  Eyre,  C.  J., 
says,  such  contracts  as  the  court  can  pronounce  to  be  to 
the  infant's  prejudice  are  merely  void ;  those  that  are  of  an 
uncertain  nature,  as  to  the  benefit  or  prejudice,  are  voidable 
only,  (c)  This  doctrine  is  recognized  by  the  supreme  court 
of  Tennessee  and  by  Story,  J.,  (d)  by  Hosmer,  C.  J.,  (e)  by 
Chancellor  Kent,  (/)  by  Lord  Ellenborough  ;  (g-)  and  was  the 
gi-ound  of  the  decisions  just  cited,  respecting  an  infant's  bond 
for  payment  of  interest,  his  release,  and  his  contracts  as 
surety.  (A) 

An  exception  to  the  rule,  that  an  infant's  deed  is  voidable 
only  where  the  court  cannot  pronounce  it  to  be  to  his  prej- 
udice, is  made  in  the  case  of  a  power  of  attorney  executed 
by  him.  Such  an  instrument  is  treated  as  utterly  void. 
Hence  any  contract,  made  in  his  name  and  for  his  benefit, 
under  an  authority  thus  attempted  to  be  delegated,  is  of  no 
validity  and  may  be  regarded  as  void,  not  only  by  the  other 
contracting  party,  but  also  by  third  persons ;  and  cannot  be 
made  valid  by  a  subsequent  ratification,  (i)  Indeed,  no  void 
contract  can  be  ratified ;  there  is,  in  legal  estimation,  no  sub- 
ject of  ratification,  (j) 

A  power  of  attorney,  to  authorize  another  to  receive  seizin 
of  land  for  an  infant,  in  order  to  complete  his  title  to  an  estate 
conveyed  to  him  by  feoff"meiit,  is  voidable  only ;  it  being  an 

(a)  14  Mass.  462. 

(b)  Rogers  v.  Hurd,  4  Day,  5  7.  Maples  v.  Wightman,  4  Conn.  376.  Cur- 
tin  V.  Patton,  1 1  Serg.  &  R.  305. 

(c)  2  H.  Bl.  515. 

(d)  6  Yerg.  9.     5  ib.  41.     1  Mason,  82. 

(e)  6  Conn.  503. 

(J)  2  Kent  Com.  193,  1st  ed. 

(g)  3  M.  &  S.  481. 

(h)  Finch,  (103)  says,  "grants  of  his,  where  himself  hath  benefit,  are  only 
voidable."     See  Pennington,  (2d  ed.)  764. 

(i)  2  Lil.  Ab.  69.  4  Littell,  18.  Bac.  Ab.  Infancy  and  Age,  1.  3.  Sauu- 
derson  v.  Marr,  1  H.  Bl.  75.  Finch,  102.  1  Amer.  Lead.  Cas.  (4th  ed.)  248, 
249. 

(y)  Dalison,  64,  pi.  25.  Cro.  Eliz.  126.  Co.  Lit.  295  b.  2  T.  R.  766. 
4  Conn.  376. 


42  LAW   OF    CONTRACTS. 

authority  to  do  an  act  for  his  benefit,  (a)  And  the  good  sense 
of  the  thing  seems  to  be,  that  an  authority  delegated  by  an 
infant  for  a  purpose  which  may  be  beneficial  to  him,  or  which 
the  court  cannot  pronounce  to  be  to  his  prejudice,  should  be 
considered  as  rendering  the  contract  made,  or  act  done,  by 
virtue  of  it,  as  voidable  only,  in  the  same  manner  as  his  per- 
sonal acts  and  contracts  are  considered. 

And  it  is  held,  that  this  anomaly  is  confined  to  cases  of 
authority  delegated  under  a  sealed  instrument.  The  old  de- 
cisions are  all  of  that  kind  ;  and,  being  somewhat  inconsist- 
ent with  the  general  principles  affecting  infant's  contracts,  the 
doctrine  is  not  extended  to  implied  or  oral  authority.  There- 
fore, where  an  adult  and 'an  infant  were  partners  in  trade,  and 
the  adult  signed  a  promissory  note  in  the  name  of  the  firm, 
for  a  partnership  debt,  it  was  held  to  be  voidable  only  by 
the  infant,  and  that  he  was  bound  by  his  ratification  of  it 
after  he  came  of  age.  {b) 

In  any  new  case  that  may  arise,  if  it  should  be  necessary 
to  an  infant's  protection  that  his  deed  or  other  contract  should 
be  considered  void,  the  reason  of  the  privilege  would  doubt- 
less warrant  an  exception,  in  such  case,  to  the  general  rule,  (c) 

It  is  said  by  Lord  Mansfield  (d)  that  the  privilege  of  avoid- 
ing their  contracts  is  given  to  infants  as  a  shield  and  not  as  a 
sword.  Yet  cases  are  not  unfrequent,  where  equitable  and 
honorable  claims  are  resisted  and  avoided,  on  the  mere  legal 
right  of  the  infant.  Perhaps,  however,  this  privilege  is  not 
oftener  abused  to  purposes  of  injustice,  than  most  other  rules 
of  law,  which,  from  necessity,  must  be  general,  and  cannot  be 
made  to  bend  to  the-  circumstances  of  particular  cases. 

In  contracts,  where  the  infant  engages  to  do  some  future 
act,  as  to  pay  money,  perform  covenants,  or  fulfil  any  other 
promises,  (i.  e.  in  cases  of  executory  contracts,)  he  may,  in 
general,  not  only  refuse  to  perform  them  during  his  infancy, 
but  may  disaffirm  them  after  he  comes  of  age,  and  leave  the 

(a)  Bro.  Ab.  Faites,  31.     1  Rol.  Ab.  730.    3  Bur.  1808.    1  Wooddesou,  400. 

(&)  Whitney  v.  Dutch,  14  Mass.  457. 

(c)  3  Bur.  1807,  1808.     Keeve  Dom.  Rel.  250,  252. 

(d)  3  Bur.  1802. 


INFANTS.  43 

other  party  without  remedy.  Thus,  he  may  refuse  to  pay  his 
bond  or  note,  to  perform  any  covenant  he  has  made,  or  to 
fulfil  any  oral  promise,  though  he  has  received  a  full  consider- 
ation for  such  bond,  covenant,  or  promise.  If  he  has  bor- 
rowed money,  or  purchased  goods,  and  spent  the  one  and 
used  or  sold  the  other,  he  cannot  be  compelled  to  pay  ;  and, 
if  sued,  whether  during  minority  or  after  he  is  of  full  age,  he 
may  successfully  resist,  on  the  ground  of  his  infancy  at  the 
time  of  the  borrowing  or  the  purchase ;  and  his  executor  or 
administrator  is  entitled  to  the  same  defence. 

When  an  infant  has  disposed  of  his  own  property,  (?*.  e.  in 
cases  of  executed  contracts)  he  may,  in  general,  disaffirm  the 
contract,  either  during  infancy  or  after  he  comes  of  age.  [a) 
Thus,  if  he  lease  his  lands,  reserving  rent,  he  may  allow  the 
lessee  to  be  his  tenant,  and  may  receive  the  rent ;  or  he  may 
rescind  the  contract,  and  treat  the  lessee  as  a  trespasser,  {b)  In 
Co.  Lit.  248  a.  it  is  said,  "  if  an  infant  make  a  feoffment,  &c., 
he  may  enter,  either  within  age,  or  at  any  time  after  his  full 
age."  And  in  2  Inst.  673,  it  is  said,  "if  an  infant  bargain 
and  sell  lands  which  are  in  the  realty,  by  deed  indented  and 
enrolled,  he  may  avoid  it  when  he  will."  But  the  law  of  Eng- 
land seems  now  to  be,  that  though  an  infant  grantor  of  lands 
may  enter  upon  them  during  minority,  and  vest  them  in  him- 
self, «  for  the  sake  of  the  profits,"  yet  that  he  cannot  maintain 
an  action  to  recover  them,  and  thus  avoid  his  grant,  until  he 
has  attained  full  age.  3  Bur.  1808,  by  Lord  Mansfield.  1 
Roscoe  on  Keal  Actions,  93.  Jackson  on  Real  Actions,  263. 
The  law  of  this  country  is  similar.  9  Cowen,  628.  5  Min. 
61.  16  N.  Hamp.  390.  17  Conn.  483.  8  Texas,  92.  Wil- 
lard  on  Real  Estate,  446.  1  Washburn  on  Real  Property, 
305,  306.     1  Amer.  Lead.  Cas.  (4th  ed.)  257. 

There  are  certain  contracts  of  record,  as  fines,  recoveries, 
recognizances,  statutes,  &c.,  which  must,  by  the  common  law 
of  England,  be  avoided  during  minority,  or  they  will  be  bind- 
ing forever,  (c)    This  exception  rests  upon  a  reason  that  never 

(a)  Bac.  Ab.  Infancy  and  Age,  I.  5. 
(6)  Blunden  v.  Baugh,  Cro.  Car.  302,  306. 

(f)  2  Inst.  483.  Co.  Lit.  380  b.  Bac.  Ab.  Infancy  and  Age,  I.  5.  New- 
land  on  Con.  13,        " 


44  LAW   OF   CONTRACTS. 

operated  in  New  England,  probably  in  none  of  the  United 
States,  and  is  not  a  part  of  our  law,  viz. :  trying  infancy  by 
inspection,  (a) 

In  order  to  avoid  a  feoffment  made  by  an  infant,  it  is  re- 
quired that  he  should  enter  upon  the  land  to  regain  seizin. 
Conveyance  by  feoffment  is  not  practised  here,  and  is  in  a 
great  measure,  if  not  wholly,  superseded  in  England  by  other 
modes  of  tranferring  real  property. 

Where  the  conveyance  of  an  infant's  land  is  by  deed  of  bar- 
gain and  sale,  the  common  mode  of  assurance  in  New  Eng- 
land and  most  of  the  other  states,  there  are  cases  in  which  it 
has  been  held  that  it  is  not  necessary  that  an  entry  should  be 
made  in  'order  to  avoid  it. 

In  Jackson  v.  Carpenter,  11  Johns.  539,  and  Jackson  v.  Bur- 
chin,  14  Johns.  124,  where  an  infant  had  sold  and  conveyed 
wild  lands  by  deed  of  bargain  and  sale,  and,  several  years 
after  he  came  of  age,  conveyed,  by  a  similar  deed,  the  same 
lands  to  another  person,  it  was  held,  that  the  first  conveyance 
was  legally  avoided,  and  the  last  purchaser  entitled  to  the 
property.  And  so  it  was  held  in  Tucker  v.  Moreland,  10 
Peters,  58,  in  the  case  of  a  deed  of  real  estate  in  the  city  of 
Washington.  In  that  case  it  is  to  be  observed  that  the  infant 
had  continued  in  possession,  after  making  his  first  deed,  until 
he  made  the  second. 

Since  these  three  cases  were  published,  several  of  the  state 
courts  have  recognized  the  proposition  as  general,  if  not  uni- 
versal, that  an  infant's  deed  of  his  real  estate  may  be  disaf- 
firmed by  his  second  deed,  though  to  another  grantee,  after 
coming  of  age,  without  a  previous  entry.  See  2  Dev.  &  Bat. 
326.  7  Humph.  126.  15  Ohio,  192.  7  Ind.  401.  24  Mis- 
souri, 544.  But  in  Bool  v.  Mix,  17  Wend.  133,  Bronson,  J., 
said  that  in  11th  and  14th  Johnson,  (supra)  stress  was  laid  on 
the  fact  that  the  land  was  vacant  and  uncultivated,  and  that 
an  entry  would  have  been  useless ;  that  if  in  those  cases  the 
land  had  been  held  adversely  to  the  infant,  the  second  deed 
would,  in  his  opinion,  have  been  void,  and  that  this  was  ad- 
mitted in  Jackson  v.  Burchin.  And  in  Dominick  v.  Michael, 
(a)  See  3  Bl.  Com.  331,  332. 


INFANTS.  45 

4  Sandf.  421,  Duer,  J.,  referred  to  Bool  v.  Mix  as  satisfactorily- 
showing  that  to  enable  an  infant  to  pass  title  by  a  second 
conveyance,  his  previous  actual  entry  on  the  land  is  an  indis- 
pensable requisite  ;  and  that  this  rule  is  applicable  in  all  cases, 
except  where  the  infant  has  retained  possession  of  the  lands, 
or,  at  the  time  of  the  execution  of  the  second  deed,  they  are 
wholly  vacant. 

It  is  not  known  that  any  court  in  New  England  has  ad- 
judged this  point.  But  in  1  N.  Hamp.  75,  Woodbury,  J.,  said 
that  an  infant,  in  order  to  avoid  his  deed,  was  generally  bound 
to  reenter,  but  that  if  he  be  already  in  possession,  or  if  the  land 
be  all  wild,  a  mere  sale  of  it  might  sufficiently  disaffirm  his 
first  conveyance.  And  Parker,  C.  J.,  in  13  Mass.  375,  said 
that  an  infant  grantor  could  disaffirm  his  deed  of  land  and 
convey  title  "  only  by  entry."  Since  this  was  said,  the  stat- 
utes of  Massachusetts  and  of  j\Iaine  have  enabled  parties  to 
recover  land  by  a  WTrit  of  entry,  without  first  making  an  entry 
thereon ;  proof  of  title  and  of  a  right  of  entry  being  made 
sufficient  to  maintain  such  writ.  And  in  Chadbourne  v. 
Rackliffe,  30  Maine,  354,  the  bringing  of  that  writ,  after  com- 
ing of  age,  was  held  equivalent  to  an  entry,  and  to  be  a  dis- 
affirmance of  a  deed  made  during  minority. 

No  reason  is  perceived,  and  none  is  known  to  have  been 
anywhere  suggested,  judicially  or  otherwise,  for  a  difference  in 
the  mode  of  disaffirming  a  deed  voidable  for  infancy  and  a 
deed  voidable  for  insanity  or  for  duress.  In  the  two  latter  it  is 
adjudged,  and  nowhere  denied  in  New  England,  that  a  valid 
deed  to  a  second  grantee  cannot  be  made  until  after  entry  on 
the  land,  or  after  action  brought  to  recover  it.  In  aU  cases, 
a  first  deed,  duly  executed  and  recorded,  conveys  a  seizin  to 
the  grantee,  and  his  possession  under  the  deed  is  adverse  to  the 
grantor.  That  the  grantor  may  not  be  thereby  technically 
disseized  is  immaterial.  He  has  parted  with  his  own  seizin, 
and  his  grantee's  seizin  and  possession  have  the  same  legal 
effect  as  a  technical  disseizin  would.  Until  the  grantor  some- 
how regains  a  seizin,  he  is  disabled  by  the  grantee's  adverse 
possession  to  pass  a  title.  See  4  Mass.  68.  5  Mass.  352. 
7  Mass.  384.     13  Met.  4.     9  Allen,  88,  166.     6  Met.  339,  444. 


46  LAW   OF   CONTRACTS. 

4  Gray,  200.  19  Verm.  161.  Where  such  is  the  law,  it  is 
not  supposable  that  a  court  would  sanction  a  disaffirmance 
of  an  infant's  deed  by  his  second  deed  to  another  grantee, 
without  a  previous  entry,  further  than  it  was  sanctioned  by 
the  judges  whose  opinions  in  Bool  v.  Mix  and  Dominick  v. 
Michael  are  above  stated.  1  Washburn  on  Real  Property, 
304.  And  why  should  not  the  grantor  of  wild  and  unculti- 
vated land  be  required  to  make  entry  thereon,  or  bring  a  writ 
of  entry,  before  conveying  it  a  second  time,  wherever  the 
ownership  of  such  land  is  held  (unless  possession  adverse  to 
the  owner  is  clearly  shown)  to  be  equivalent  to  a  seizin  and 
possession  thereof?  See  15  Pick.  189.  24  Pick.  78,  79.  8 
Johns.  270.  Stearns  on  Real  Actions,  33.  4  Kent  Com.  (11th 
ed.)  28,  (6th  ed.)  30,  31.    1  Washburn   on  Real  Property,  136. 

As  no  deed  is  necessary  to  the  transfer  of  personal  property, 
an  infant's  contract  respecting  the  disposition  of  such  prop- 
erty may  be  disaffirmed  by  his  verbal  declarations  to  the  other 
party,  and  by  retaking  or  demanding  the  restoration  of  it. 
And  this  he  may  do,  although  the  contract  was  made  with 
the  express  approbation  of  his  guardian,  (a) 

An  absolute  gift  made  by  an  infant  may  be  revoked  by  him 
or  by  his  administrator.     Person  v.  Chase,  37  Verm.  647. 

The  effect  of  the  disaffirmance  of  an  infant's  contract,  upon 
the  rights  and  interest  of  the  other  party,  is  different  in  the 
cases  of  executory  and  of  executed  agreements. 

Where  the  agreement  is  executory  on  the  part  of  the  adult, 
a  disaffirmance  by  the  infant  discharges  the  adult  from  his 
obligation  to  performance.  As  if  an  infant  leases  land,  re- 
serving rent  payable  i?i  futuro,  and  afterwards  avoids  the 
lease,  the  lessee  is  not  bound  by  his  agreement  or  covenant  to 
pay  the  rent,  at  least,  for  no  longer  time  than  he  occupies  un- 
der the  lease.  So,  if  an  infant  sells  a  horse  or  any  other  chat- 
tel on  credit,  taking  the  purchaser's  oral  promise  or  note, 
and  rescinds  the  contract  and  reclaims  the  property,  the  pur- 
chaser may  refuse  to  pay  for  it ;  and,  if  sued,  may  defend 
with  success  against  the  infant's  claim,  (b) 

(a)  10  Johns.  132. 

(b)  Reeve  Dom.  Rel.  243,  244. 


INFANTS.  47 

But  if  the  contract  is  executed  by  the  adult,  he  cannot  com- 
pel the  infant  to  restore  what  he  has  paid  him.  Thus,  in  the 
cases  above  supposed,  if  the  rent  had  been  paid  in  advance, 
or  the  horse  or  other  property  been  paid  for  before  delivery, 
the  law  would  give  no  redress,  though  the  infant  disaffirmed 
the  lease,  or  refused  to  deliver  the  property  sold  by  him  ;  that 
is,  no  redress  in  an  action  on  a  contract.  And  it  is  not  clear 
that  in  such  cases  there  is  any  legal  remedy,  (a) 

Where,  however,  the  infant  receives  payment  on  the  sale 
and  delivery  of  his  goods,  it  has  been  made  a  question, 
whether  he  can  rescind  the  contract  and  reclaim  possession, 
without  refunding  the  price.  That  he  may,  on  the  mere 
ground  of  his  minority,  disaffirm  the  sale,  does  not  admit  of 
question;  and,  for  causes  which  it  is  unnecessary  to  state 
here,  contracts  between  persons  of  full  age  may  sometimes  be 
rescinded  ;  but,  in  such  cases,  the  party  rescinding  must  place 
the  other  party  in  statu  quo.  In  Badger  v.  Phinney,  15 
Mass.  363,  it  was  said  by  Mr.  Justice  Putnam,  that  this  prin- 
ciple would  be  applied  to  an  infant  who  had  received  pay- 
ment and  should  afterwards  seek  to  reclaim  his  property. 
And  such  seems  now  to  be  the  American  doctrine,  (b)  and 
to  be  deducible  from  the  English  decision  in  Holmes  v.  Blogg, 
hereafter  to  be  considered. 

But  where  the  infant  refuses  to  pay  for  articles  sold  to  him, 
the  other  party  cannot  retake  the  articles.  Where  he  has  re- 
ceived money  for  property  which  he  engaged  to  deliver  to  the 
purchaser,  and  afterwards  refuses  to  deliver,  his  privilege 
(as  it  is  termed)  is  his  defence.  This  is  manifestly  inequi- 
table, and  Judge  Reeve  (c)  therefore  denies  that  such  is  the 
law.  But  the  principles  of  the  law  of  infancy  seem  to  lead 
to  this  result,  and  so  do  the  authorities,  (d) 

(a)  In  Shaw  v.  Boyd,  5  Serg.  &  R.  309,  an  infant  received  S500  for  giving 
a  bond  to  release  dower,  and  yet  recovered  dower  without  refunding  the 
money.  Gibson,  C  J.,  there  said  "  a  court  of  common  law  can  impose  no  con- 
ditions on  a  party  pursuing  a  legal  right." 

(b)  2  Kent  Com.  (11th  ed.)  264.  Chit,  on  Con.  (10th  Amer.  ed.)  164, 
note.     17  Texas,  341.     1  Amer.  Lead.  Cas.  (4th  ed.)  259,  260. 

(c)  Dom.  Rel.  244. 

(f/)  See  Cresinger  v.  Lessee  of  Welch,  15  Ohio,  156.     Pitcher  v.  Laycock, 


48  LAW   OP   CONTRACTS. 

Nor  is  there  anything  less  equitable  in  this  result  of  legal 
principles,  than  in  that  already  mentioned,  which  Judge  Reeve 
does  not  controvert,  viz. :  that  an  infant  may  safely  refuse  to 
pay  for  articles  bought,  or  to  repay  money  borrowed  by  him. 
In  the  one  case,  the  party  loses  his  goods  or  money  lent ;  in 
the  other,  he  loses  money  paid  by  him  without  an  equivalent. 

In  2  Eden,  72,  and  Wilmot,  226,  note,  Lord  Mansfield  is 
reported  to  have  said  that  "  if  an  infant  pays  money  with 
his  own  hands,  without  a  valuable  consideration,  he  cannot 
get  it  back."  And  this  dictum  was  formerly  supposed  to  have 
been  sanctioned  by  the  decision  of  Lord  Kenyon,  at  nisi  prius, 
in  Wilson  v.  Kearse,  Peake  Add.  Cas.  196,  and  by  the  court 
of  common  pleas,  in  Holmes  v.  Blogg,  8  Taunt.  508  and  2 
Moore,  552.  But  in  Corpe  v.  Overton,  10  Bing.  252  and  3 
Moore  &  Scott,  738,  where  an  infant  made  an  agreement  with 
an  adult  to  enter  into  partnership  with  him  on  a  future  day, 
and  deposited  money  with  him,  as  security  for  the  performance 
of  that  agreement,  which  he  disaffirmed  on  coming  of  age,  it 
was  decided  that  he  might  recover  back  the  money  so  de- 
posited. The  ground  of  the  decision  was,  that  he  had  derived 
no  advantage  from  his  agreement,  and  received  no  considera- 
tion for  it.  Whereas  in  Holmes  v.  Blogg,  an  infant  and  his 
partner  took  a  lease  of  premises  in  which  they  carried  on 
business,  and  the  infant  paid  £157  as  his  part  of  the  sum  ad- 
vanced for  the  lease.  The  partners  entered  upon  the  premises 
and  held  possession  jointly  for  three  months,  when  the  infant 
attained  full  age,  dissolved  the  partnership,  relinquished  the 
business,  and  brought  an  action  against  the  lessor  to  recover 
the  money  which  he  had  paid.  The  ground  on  which  it  was 
decided  that  he  could  not  recover  was,  that  he  had  received 
some  value  for  the  money  which   he  had   paid,  and  that  he 

7  Ind.  398.  Gibson  v.  Soper,  6  Gray,  279.  In  Doe  v.  Abernathy,  7  Blackf. 
442,  ejectment  was  maintained  after  coming  of  age  without  any  suggestion  of 
a  return  of  the  money  received  for  the  first  deed. 

By  statute  in  Iowa,  "  a  minor  is  bound  not  only  by  contracts  for  necessaries, 
but  also  by  his  other  contracts,  unless  he  disaflirms  them  within  a  reasonable 
time  after  he  attains  his  majorty,  and  restores  to  the  other  party  all  money  or 
property  received  by  him  by  virtue  of  the  contract,  and  remaining  within  his 
control  at  any  time  alter  his  attaining  his  majority."     12  Iowa,  198. 


INFANTS.  49 

could  not  put  the  lessor  in  statu  quo.  See  also  Stone  v.  Den- 
nison,  13  Pick.  1.  Breed  v.  Judd,  1  Gray,  455,  Wilhelm  v. 
Hardman,  13  Maryl.  140.  Aldrich  v.  Abrahams,  Hill  &  Denio, 
423. 

The  case  of  Wilson  v.  Kearse,  in  which  Lord  Kenyon  held 
that  when  an  infant  had  contracted  to  purchase  the  good  will 
and  stock  of  a  public  house  and  had  made  a  deposit,  he  could 
not,  on  refusing  to  complete  the  contract,  recover  back  the 
sum  deposited,  must  be  considered  as  overruled  by  Corpe  v. 
Overton,  unless  (which  does  not  appear)  there  was,  in  the  for- 
mer case,  some  enjoyment  under  the  contract.  2  Macpherson 
on  Infants,  478,  479.  But  see  Ex  parte  Taylor,  8  De  Gex, 
Mac.  &  Gord.  254. 

Though  an  adult,  when  he  engages  to  perform  service  for 
another  for  a  year  or  other  definite  time,  for  a  gross  sum  for 
the  whole  time,  and  leaves  the  service  without  the  other's 
consent,  or  any  justifiable  cause,  can  recover  nothing  for  the 
service  which  he  performed,  (as  seen  ante,  page  8),  yet  an 
infant,  in  such  case  may  recover  pay  for  the  service  rendered 
by  him.  (a) 

An  infant  is  entitled  to  reclaim  money  paid  on  a  consider- 
ation that  has  failed,  and  may  have  a  remedy  against  those 
who  defraud  him.  As  to  these  rights,  he  stands  upon  the 
same  ground  as  an  adult.  In  addition  to  his  power  to  dis- 
affirm his  contracts  without  cause,  he  has  all  the  legal  rights 
of  a  person  of  full  age  to  rescind  them  for  cause.  His  privi- 
lege is  merely  cumulative,  and  neither  diminishes  nor  varies 
any  rights  to  which  he  would  be  entitled  without  it.  {h) 

It  is  true  that  minors  are  liable,  generally,  for  their  torts, 
as  for  slander,  trespass,  &c.  (c)  But  in  the  case  before  men- 
tioned, of  a  minors  refusing  to  pay  for  goods  which  he  has 

(a)  Moses  v.  Stevens,  2  Pick.  332.  "Vent  v.  Osgood,  19  Pick.  572.  Jud- 
kins  V.  Walker,  17  Maine,  38.  Lufkin  v.  Mayall,  5  Foster,  82.  Thomas  v. 
Dike,  11  Verm.  273.  Medbury  v.  Watrous,  7  Hill,  110.  Whitmarsh  v. 
Hall,  3  Denio,  375.  Voorhees  v.  Wait,  3  Green  (N.  J.)  343.  Dallas  v.  Hol- 
lingsworth,  3  Ind.  537.     Wheatly  v.  Miscal,  5  Ind.  142. 

(6)  See  6  Taunt.  120. 

(c)  Noy,  129.  8  T.  R.  337.  3  Pick.  492.  6  Cranch,  226.  3  Wend.  391. 
17  Wis.  230. 

4 


60  LAW   OF   CONTRACTS. 

bought,  there  is  no  principle  of  law  by  which  he  can  be  made 
liable,  in  an  action  ex  delicto^  or  by  which  the  vendor  can  re- 
scind the  sale  and  retake  the  goods.  He  would  be  liable  only 
on  his  contract,  and  from  this  liability  the  minor  is  protected 
by  his  privilege.  It  would  be  a  violation  of  principle,  to  re- 
gard and  treat  as  fraudulent  and  tortious,  in  an  infant,  those 
acts  which  are  not  so  in  an  adult,  merely  because  the  infant  is 
not  liable,  like  the  adult,  in  an  action  ex  contractu. 

In  the  case,  also  before  mentioned,  of  a  minor's  refusing  to 
deliver  goods  which  he  has  sold,  and  for  which  he  has  received 
payment,  it  is  probably  true,  that  if  he  were  an  adult,  he  might 
be  sued  in  an  action  of  trover  for  tlie  unlawful  detention  (tech- 
nically, conversion),  and  made  to  pay  the  full  value  to  the  pur- 
chaser. But  an  adult  cannot  avoid  his  fair  contract,  like  an 
infant ;  and  therefore  the  goods,  upon  his  paying  for  them, 
become  his  (as  between  him  and  the  seller),  and  the  subse- 
quent detention,  against  his  will,  is  a  conversion  of  hu  prop- 
erty. When,  however,  an  infant  avoids  his  contract  in  such 
case,  the  property  in  the  goods  reverts  to  him,  and,  by  refusing 
to  deliver  them,  he  cannot  be  said  to  convert  the  goods  of  the 
purchaser. 

Though  this  reasoning  is  technical,  yet  it  is  legal,  and  we 
must  defer  to  its  results. 

But  if,  in  this  case,  an  adult  would  likewise  be  liable  in  an 
action  on  the  case,  for  tortiously  refusing  to  deliver  the  goods, 
yet,  says  Chief  Justice  Gibbs,  (2  Marsh.  486)  the  cases  clearly 
show  that  where  the  substantial  ground  of  action  rests  on 
promises,  the  plaintiff  cannot,  by  declaring  in  tort,  render  an 
infant  liable,  who  would  not  have  been  liable  on  his  promise. 

The  first  case  on  this  point  is  Grove  v.  Nevill,  (a)  where  it 
was  decided,  that  infancy  is  a  good  defence  against  an  action 
of  deceit,  for  affirming,  on  the  sale  of  goods,  that  they  were 
the  vendor's  property,  when  they  were,  in  fact,  the  property  of 
another  person. 

(a)  1  Keble,  778.  Mr.  Justice  Windham  doubted.  In  1  Keble,  914,  it  is 
stated  that,  in  addition  to  the  false  affirmation  as  to  ownership,  the  infant  de- 
ceived the  purchaser,  by  asserting  that  the  article  was  of  a  different  kind  from 
what  it  proved  to  be. 


INFANTS.  61 

The  next  case  is  that  of  Johnson  v.  Pie,  (a)  where  an  in- 
fant Avas  sued,  in  an  action  ex  delicto,  for  deceit  in  afRrming 
himself  to  be  of  age,  and  thereby  obtaining  money,  on  giving 
a  mortgage  as  security  for  payment  thereof,  which  he  after- 
wards avoided  for  infancy  ;  and  judgment  was  arrested  after 
verdict  for  the  plaintiff. 

On  the  authority  of  these  cases,  it  was  held,  in  Jennings  v. 
Rundall,  8  T.  R.  335,  that  infancy  was  a  bar  to  an  action  ex 
delicto,  in  which  the  plaintiff  declared,  that  he  Jet  a  horse  to 
the  defendant  to  be  moderately  ridden,  but  that  he  injured  the 
horse  by  immoderate  riding  and  want  of  care. 

In  Green  v.  Greenbank,  (b)  it  was  decided,  that  an  infant 
is  not  liable  for  a  false  warranty  on  an  exchange  of  horses. 
Chief  Justice  Gibbs  there  said  :  "  This  is  a  case  in  which 
the  assumpsit  is  clearly  the  foundation  of  the  action  ;  for  it 
is  in  fact  undertaking  that  the  horse  was  sound."  (c) 

In  Conroe  v.  Birdsall,  1  Johns.  Cas.  127,  Brown  v.  Mc- 
Cune,  5  Sandf.  224,  Burley  v.  Russell,  10  N.  Hamp.  1S4, 
and  Merriam  v.  Cunningham,  11  Cush.  40,  it  was  held  that  a 
defendant  is  not  answerable  ex  contractu  on  an  agreement 
made  by  him  when  an  infant,  though  he  then  fraudulently 
alleged  that  he  was  of  full  age.  See  opinion  of  Tilghman, 
C.  J.,  in  Stoolfoos  v.  Jenkins,  12  Serg.  &  R.  403.  But  in  Fitts 
V.  Hall,  9  N.  Hamp.  441,  it  was  decided  (contrary  to  Johnson 
V.  Pie,  supra,)  that  a  defendant  is  answerable,  in  such  case  in 
an  action  ex  delicto.  Parker,  C.  J.,  said  :  "  The  representation 
that  the  defendant  was  of  full  age  was  not  a  part  of  the  con- 
tract, nor  did  it  grow  out  of  the  contract  or  in  any  way  result 
from  it.  No  contract  was  made  about  the  defendant's  age.*' 
A  like  decision  of  the  court  of  common  pleas  for  the  city  and 
county  of  New  York  was  made  in  1863.  Eckstein  v.  Frank, 
1  Daly,  334.  (d)     In  1  Amer.  Lead.  Cas.  (4th  ed.)  262,  this 

(a)  1  Sid.  258,  1  Lev.  169,  and  1  Keble,  905,  913. 

(6)  2  Marsh.  485. 

(c)  West  V.  Moore,  14  Verm.  449,  Morrill  v.  Aden,  19  Verm.  505,  and 
Prescott  V.  Norris,  32  N.  Hamp.  101,  ace.  Word  v.  Vance,  1  Nott  &  McCord, 
197,  contra. 

{d)  In  this  case  the  court  said  that  the  doctrine  oftJohnson  v.  Pie  had  been 
distinctly  repudiated  by  the  supreme  court  of  New  York,  in  AVallace  v.  Morss, 


62  LAW   OF    CONTRACTS. 

doctrine  is  pronounced  to  be  "  clearly  unsound."  And  in  the 
recent  work  of  Addison  on  Torts,  the  decision  in  Johnson  v. 
Pie  is  repeatedly  referred  to  as  the  unquestioned  law  of 
England.  See  also  Bartlett  v.  Wells,  1  Best  &  Smith,  836, 
and  De  Roo  v.  Foster,  12  C.  B.  N.  S.  272.  See  further,  10 
Peters,  77.  11  Serg.  &  R.  310.  4  Selden,  440.  25  Wend. 
401. 

In  Norris  v.  Vance,  3  Richardson,  164,  it  was  held  that 
though  an  infant  sells  goods,  fraudulently  representing  him- 
self to  be  of  age,  yet  he  may  disaffirm  the  sale  and  maintain 
trover  against  the  vendee. 

Before  the  action  of  assumpsit  was  brought  into  its  present 
use  and  form,  the  common  if  not  the  only  way  of  declaring, 
in  cases  like  these,  was  in  an  action  on  the  case  for  special 
damage ;  and  that  is  yet  retained,  and  often  used  concurrently 
with  the  modern  action  of  assumpsit. 

In  the  case  of  Vasse  v.  Smith,  (a)  one  count  in  the  declara- 
tion alleged  a  consignment  of  flour  to  the  defendant  on  com- 
mission, to  be  sold  for  cash,  or  drafts  payable  in  sixty  days 
at  a  specified  place  ;  and  that  the  defendant  violated  his  un- 
dertaking by  such  negligence  and  carelessness  that  the  flour 
was  wasted  and  lost  to  the  plaintiff.  It  was  decided  that 
infancy  was  a  legal  defence,  there  being  no  feature  of  a  tort 
for  which  an  infant  is  liable,  but  a  mere  breach  of  contract. 

So,  in  Schenck  v.  Strong,  {b)  infancy  was  held  to  be  a  good 

5  Hill,  392,  and  by  the  courts  of  other  states.  But  the  case  in  5  Hill  was  un- 
derstood by  the  court  of  appeals,  in  Campbell  v.  Perkins,  4  Selden,  440,  to 
have  decided  nothing  more  than  that  the  title  to  goods  obtained  by  false  repre- 
sentations or  other  frauds  of  an  infant  does  not  pass  to  him,  but  that  the  prop- 
erty in  them  remains  in  the  vendor,  who  may  reclaim  them  by  replevin,  (as 
in  Badger  v.  Phinney,  15  Mass.  359,)  or  maintain  trover  for  them,  as  in  cases 
of  fraud  by  an  adult  buyer,  and  that  the  cases  cited  in  support  of  the  decision 
in  5  Hill  decide  nothing  more.  Now  between  cases  of  this  kind  and  that  of 
Johnson  v.  Pie  there  is  an  intelligible  distinction,  affecting  at  least  the  form 
of  action.  When  a  vendor  brings  an  action  against  the  buyer  to  recover 
damages  for  deceit  or  fraud  in  the  sale,  he  makes  his  election  to  consider  the 
contract  of  sale  as  subsisting,  and  to  seek  damages  for  the  breach  of  it.  4 
Mass.  505,  506.  Such  was  the  action  of  Johnson  v.  Pie,  and  is  not  overruled 
by  the  class  of  cases  to  which  Badger  v.  Phinney  belongs. 
' (a)  6  Cranch,  226. 
{b^  1  Southard,  87. 


INFANTS.  53 

bar  to  an  action  on  the  case,  alleging  that  a  chair  was  lent  to 
the  defendant  for  a  particular  journey,  to  be  used  carefully 
and  returned  at  a  specified  time,  yet  that  he  went  with  it  on 
a  different  journey,  carelessly  broke  it,  and  did  not  return  it  at 
the  time  agreed,  thereby  violating  his  engagement  in  every 
particular.  Had  trover  been  brought  in  this  case,  alleging  a 
conversion  of  the  chair,  it  probably  would  have  been  sustained ; 
for  in  the  case  of  Homer  v.  Thwing  {a)  trover  was  supported 
against  an  infant  who  hired  a  horse  to  drive  to  one  place,  and 
drove  it  to  another.  So,  in  Vasse  v.  Smith,  above  cited,  a 
count  in  trover  was  sustained  against  the  infant,  by  proof 
that  he  shipped  the  flour  to  the  West  Indies  on  account  of 
another  person.  Chief  Justice  Marshall  said:  "infancy  is  no 
bar  to  an  action  of  trover,  though  the  goods  are  possessed  in 
virtue  of  a  previous 'contract.  The  conversion  is  still  in  its 
nature  a  tort,  for  which  infancy  cannot  afford  a  protec- 
tion." {b) 

So,  in  the  case  of  Mills  v.  Graham,  (c)  detinue  was  main- 
tained against  a  bailee  of  skins,  who,  during  infancy,  took 
them  to  finish  on  contract  and  to  return  them  to  the  owner,  but 
who  afterwards  refused  to  deliver  them,  and  "  declared  that 
he  would  contest  the  matter  at  law,  as  he  was  under  age." 
Chief  Justice  Mansfield  said :  "  there  can  be  no  doubt  that 
trover  might  have  been  brought  on  the  conversion." 

In  the  case  of  Badger  v.  Phinney,  15  Mass.  364,  it  was  de- 
cided that  if  an  infant  represent  himself  to  be  of  age,  and 
buy  goods  on  credit,  for  which  he  afterwards  refuses  to  pay, 
the  seller  may  take  the  goods  from  the  infant  or  his  adminis- 
trator, by  writ  of  replevin  ;  the  court  saying  "  the  basis  of  this 
contract  has  failed,  from  the  fault  if  not  from  the  fraud  of  the 
infant,  and  on  that  ground  the  property  may  be  considered 
as  never  having  passed  from,  or  as  having  revested  in,  the 
plaintiff."     And  in  cases  of  sales  to  an  adult,  on  credit,  upon 

(a)  3  Pick.  492.     See  also  16  Verm.  390.     5  Duer,  49. 

(h)  S.  P.  Furnes  v.  Smith,  1  Rol.  Ab.  530.  Bac.  Ab.  Infancy  and  Age, 
E.  Lewis  I'.  Littlefield,  15  Maine,  233.  Towns  v.  Wiley,  23  Verm.  355. 
Campbell  v.  Stakes,  2  Wend.  137.  Contra  in  Pennsylvania.  Penrose  v. 
Curren,  3  Rawle,  351,  and  Wilt  v.  Welsh,  6  AVatts,  9. 

(c)  1  New  Rep.  140. 


54  LAW  OP  CONTRACTS. 

his  false  representations  the  law  doubtless  is,  that  the  seller 
may  reclaim  the  property  from  the  buyer,  in  a  suit  against 
him,  or  against  any  other  person  except  a  boyid  fide  purchaser 
from  the  buyer.  15  Mass.  156.  6  Met.  74.  1  Allen,  483, 
484.  19  Maine,  281.  22  Pick.  18.  2  Cush.  48.  12  Pick. 
312,  313.     15  Mees.  &  Welsb.  219.     10  C.  B.  926. 

This,  however,  may  often  be  an  inadequate  remedy.  If  the 
property  cannot  be  found  and  resumed,  the  adult  contractor 
would  be  remediless,  unless  he  could  maintain  an  action 
against  the  minor  for  the  deceit.  But  most  of  the  decisions 
heretofore  cited  do  not  allow  the  maintenance  of  such  action. 
The  difference  in  principle,  between  allowing  the  adult  to  re- 
scind the  contract  or  treat  it  as  a  nullity  and  retake  the  goods, 
and  allowing  him  to  maintain  an  action  against  the  minor  for 
fraud,  is  not  strongly  marked. 

Even  the  former  course  may  perhaps  be  regarded  as  war- 
ranted rather  by  the  principles  of  natural  justice  than  the 
rules  of  legal  conformity ;  for,  according  to  the  cases  hereto- 
fore cited,  neither  silence  nor  misrepresentation  respecting  his 
age  will  prevent  an  infant's  avoiding  his  contract,  nor  render 
him  liable  in  an  action  ex  contractu,  (a) 

In  Forrester's  case,  1  Sid.  41,  an  infant  was  held  entitled 
to  recover  against  an  adult  on  an  executory  contract,  where 
he  (the  infant)  had  not  performed  his  part  of  the  engagement. 
If,  in  this  case,  the  infant  had  afterwards  refused  to  fulfil  his 
part  of  the  contract,  could  the  adult  have  recovered  back  the 
money  which  he  had  paid  on  judgment  and  execution? 
There  can  be  no  pretence  for  it,  even  if  both  parties  Avere  of 
full  age,  and  yet  the  right  of  the  infant  to  disaffirm  would  be 
no  defence  for  the  adult. 

Where  a  minor  embezzles  money,  it  is  reported  to  have 
been  held  by  Lord  Kenyon,  (h)  at  Nisi  Prius.  that  he  is  liable 
in  an  action  ex  contractu^  for  money  had  and  received ;  that 
the  act  being  a  tort,  the  form  of  action  may  be  the  same  as 
against  an  adult,  who  may  be  charged  in  this  manner,  if  the 
plaintiff  chooses  to  waive  the  tort.     Judge    Reeve   advances 

(a)   See  opinion  of  Chief  Justice  Gibson,  in  6  AYatts,  12,  13. 
{}})  Bristow  V.  Eastman,  1  Esp.  R.  172  and  Peake's  Cas.  223, 


INFANTS.  65 

the  same  doctrine,  (Dom.  Eel.  246,)  and  it  has  been  sanc- 
tioned by  the  supreme  court  of  Vermont,  (a)  This  is  an 
anomaly,  unnecessary  to  the  attainment  of  justice,  (b) 

Not  only  the  infant  himself,  but  his  representatives,  privies 
in  blood,  may  avoid  his  conveyance  of  real  property.  His 
heir,  after  his  death,  may  enter  and  avoid  his  feoffment  made 
during  minority,  (c)  By  the  law  of  New  York,  {ante,  page  44,) 
it  seems  that  the  heir  may  convey  by  deed,  and  thus  avoid  the 
former  deed  of  bargain  and  sale ;  or  he  may  enter  and  take 
possession,  or  do  some  other  act  of  notoriety  and  disaffirmance 
equivalent  to  that  of  the  minor's  conveyance,  (d)  His  exec- 
utor or  administrator  may  refuse  to  pay  debts  or  fulfil  other 
executory  engagements  which  he  contracted  during  infancy,  (e) 
But  the  guardian  of  a  minor,  as  such,  cannot  avoid  his  ward's 
contracts.  (/) 

A  minor's  contract  cannot  be  ratified  by  him  during  minor- 
ity in  such  a  manner  as  to  prevent  his  disaffirming  it  on  his 
coming  of  age.  Mr.  Newland  and  some  other  writers  suppose 
there  is  an  exception  to  this  rule,  in  the  case  of  a  minor's 
suing  an  adult  on  a  contract  not  executed  by  the  minor ;  (g-) 
that  otherwise  there  vi^ould  be  no  consideration  to  support  the 
promise  of  the  adult ;  and,  therefore,  that  the  court  must,  in 
such  case,  consider  the  suit  and  judgment  as  a  confirmation 
not  to  be  avoided  by  the  infant,  (h) 

If,  on  a  minor's  coming  of  age,  he  confirm  or  ratify  a  void- 
able agreement  made  during  nonage,  he  will  thereafter  be  held 
to  performance,  if  it  be  executory  on  his  part,  and  cannot 

(a)  Elwell  V.  Martin,  32  Verm.  217. 

(b)  It  seems,  from  Peake's  report,  that  this  point  was  not  definitively  settled 
by  Lord  Kenyon ;  a  promise  of  payment,  after  the  defendant  came  of  age, 
being  proved.     See  also  Jackson  v.  Mayo,  11  Mass.  147. 

(c)  Smalman  v.  Agborrow,  Bridgman,  44.  Whittingham's  case,  8  Co. 
42  b. 

(d)  See  Bac  Ab.  Infancy  and  Age,  I.  6.     11  Johns.  539.     14  ib.  124. 

(e)  Cro.  Eliz.  126.  9  Mass.  62,  100. 
(/)  Oliver  v.  Houdlet,  13  Mass.  240. 
(9)  As  in  Forrester's  case,  1  Sid.  41. 

(h)  Newland  on  Contracts,  14.  Sed  qucere.  See  Reeve  Dom.  Rel.  249, 
254,  255.     3  Bur.  1808. 


56  LAW   OP   CONTRACTS. 

afterwards  avoid  it,  if  it  be  executed,  (a)  It  has  been  before 
seen,  that  a  void  agreement  cannot  be  ratified.  But  a  new 
agreement  may  be  made,  by  which  the  party  may  be  held  to 
do  the  same  thing  which  he  promised  during  infancy,  or  by 
which  he  may  be  estopped  to  avoid  his  contract  made  during 
that  period.  The  whole  binding  force,  however,  of  the  obliga- 
tion in  such  case,  is  in  the  contract  made  after  the  party  is  of 
full  age.  (b) 

There  is  a  difference  in  the  effect  of  the  same  acts  or  words, 
when  applied  to  an  executory  and  when  applied  to  an  exe- 
cuted or  continuing  contract  of  an  infant ;  the  latter  is  held  to 
be  ratified  by  much  slighter  recognition  than  is  required  to 
ratify  the  former. 

To  ratify  an  executory  contract,  as  to  pay  money,  or  do 
other  acts  infuturo,  there  must  be  an  express  promise,  or  an 
explicit  confirmation  of  a  former  agreement,  to  make  the  pay- 
ment or  do  the  other  act ;  and  such  express  promise  or  con- 
firmation must  be  made  deliberately  and  freely,  (c) 

Partial  payment  of  a  debt,  after  the  minor  comes  of  age,  is 
not  a  ratification,  (d)  "  In  the  case  of  an  infant,"  said  Lord 
Kenyon,  "  I  shall  hold  an  acknowledgment  not  to  be  suffi- 
cient, and  require  proof  of  an  express  promise  to  pay,  made 
by  the  infant  after  he  has  attained  that  age  when  the  law 
presumes  that  he  has  discretion.  Payment  of  money  made 
as  in  the  present  case  is  no  such  promise."  This  was  a  case 
of  an  implied  acknowledgment  that  the  debt  was  due. 

But  an  express  acknowledgment  is  not  of  itself  a  ratifica- 
tion. An  express  promise  must  be  superadded.  An  acknowl- 
edgment only  rebuts  the  presumption  of  payment ;  whereas  an 
infant  is  allowed  to  refuse  payment,  though  he  acknowledges 

(a)  Ball  V.  Hcsketh,  Comb.  381.     Wilkinson  on  Limitations,  116. 
lb)  Baylis  v.  Dineley,  3  M.  &  S.  477.     Rogers  v.  Hurd,  4  Day,  57. 

(c)  1  Pick.  203.  4  Pick.  49.  1  Bailey  28.  3  Wend.  481,482.  2  Hawks, 
535.  5  Esp.  R.  103.  When  a  ratification  is  relied  on  to  support  an  action 
on  an  infant's  voidable  contract,  is  mnst  be  proved  to  have  been  made  before 
the  commencement  of  the  .suit.  1  Pick.  202.  6  N.  Hamp.  432.  8  ib.  374, 
2  Barn.  &  Crc-s.  824.     IG  Maine,  55. 

(d)  Thrupp  V.  Fielder,  2  Esp.  R.  628. 


INFANTS.  67 

the  debt  to  be  due.  (a)  Thus,  where  the  defendant,  after 
he  was  of  age,  "  said  he  owed  the  plaintiff  but  was  unable 
to  pay  him,  but  that  he  would  endeavor  to  get  his  brother 
to  be  bound  with  him,"  it  was  held  that  the  contract  made 
during  minority  was  not  ratified,  (b)  So,  where  a  minor 
made  a  promissory  note  and  paid  a  part  of  the  sum  due  on 
it,  and,  on  coming  of  age,  made  a  will,  in  which  he  directed 
his  just  debts  to  be  paid,  it  was  held  not  to  be  a  ratification 
of  the  note,  (c)  So,  where  the  same  minor  received  money 
from  the  plaintiff,  promising  to  pay  it  over  to  a  third  person, 
and,  after  he  came  of  age,  on  being  applied  to  by  that  person, 
said  he  should  pay  it  to  the  plaintiff  when  he  should  arrive  at 
his  residence,  it  was  held  not  to  be  a  ratification  of  the  orig- 
inal promise,  (d) 

It  is  said  by  Chief  Justice  Parker,  (e)  that  the  terms  of  rati- 
fication need  not  import  a  direct  promise  to  pay ;  that  it  is 
sufficient  if  the  party  explicitly  agree  to  ratify  a  contract 
made  during  infancy,  by  language  which  unequivocally  im- 
ports a  confirmation  of  it ;  as  if  he  say,  "  I  do  ratify  and  con- 
firm," &c.  Thus,  where  the  party,  twice  before  mentioned, 
said,  after  he  was  of  age,  "  I  have  not  the  money  now,  but 
when  I  return  from  my  voyage  I  will  settle  with  you,"  he  was 
held  to  have  expressly  ratified  his  contract.  (/) 

So,  where  the  maker  of  a  promissory  note,  upon  being 
called  upon  for  payment,  at  full  age,  said  the  note  was  due, 
and  that  on  his  return  home   he  would  endeavor  to  procure 

(a)  Lara  v.  Bird,  cited  in  Peake  on  Ev.  (2d  ed.)  260.  14  Mass..  460. 
1  Pick.  223. 

(b)  Ford  V.  Phillips,  1  Pick.  202. 

(c)  Smith  V.  INIayo,  9  Mass.  62.  Had  the  note  been  particularly  mentioned 
in  the  will,  as  a  just  debt,  the  decision  would  doubtless  have  been  different. 
The  decision,  as  made,  has  been  questioned  by  the  Court  of  New  Hampshire, 
in  Wright  v.  Steele,  2  N.  Hamp.  51. 

((/)  Jackson  v.  Mayo,  11  Mass.  147.  This  was  a  case  of  embezzlement, 
•where  trover  would  have  been  the  proper  action  without  any  ratification. 

The  dictum  of  the  court,  (in  Cro.  Eliz.  127,)  that  accepting  a  defeasance, 
after  coming  of  age,  of  a  bond  made  during  infancy,  is  a  ratification,  and  will 
hold  the  obligor  to  payment,  cannot  now  be  considered  as  law. 

(e)   14  Mass.  460.     4  Pick.  49.     4  Chand.  (Wis.)  40,  41. 

(/)  Martin  v.  Mayo,  10  Mass.  137. 


68  LAW   OF   CONTRACTS. 

the  money  and  send  it  to  the  promissee.  (a)  So,  where  a 
minor  pm-chased  land,  for  the  price  of  which  two  other  per- 
sons gave  their  note,  which  he  promised  to  sign  and  pay  after 
he  should  attain  full  age,  and,  after  attaining  full  age,  he 
wrote  on  the  note,  "  I  acknowledge  myself  holden  as  co- 
surety," he  was  charged  in  a  suit  against  him  on  the  note,  (b) 

A  ratification  may  be  conditional ;  but  the  terms  of  the 
condition  must  have  happened,  or  been  complied  with,  before 
an  action  can  be  sustained  ;  as  if,  on  coming  of  age,  the  party 
promises  to  pay  a  debt  contracted  while  he  was  a  minor, 
"  when  he  is  able,"  his  ability  to  pay  must  be  proved,  in  order 
to  charge  him ;  (c)  or,  if  he  promises  to  pay,  if  he  receives  a 
certain  legacy,  or  if  he  draws  a  prize  in  a  certain  lottery,  or 
succeeds  in  collecting  a  certain  debt,  &c.,  he  is  liable  when 
the  event  happens,  and  not  before,  (d)  On  the  same  principle, 
when  a  party  binds  himself  by  a  new  promise  or  ratification, 
he  is  liable  only  to  the  extent  of  his  new  promise  ;  as  where 
he  promises  to  pay  a  certain  part  of  the  debt,  or  the  whole  by 
instalments,  he  is  liable  according  to  his  agreement,  and  no 
further  nor  otherwise,  (e) 

There  probably  is  an  exception  to  the  rule  which  requires 
an  express  ratification  of  an  executory  contract,  in  the  case  of 
a  promise  of  marriage  made  during  minority.  As  it  is  not 
necessary  to  prove  an  express  original  promise  of  this  kind  in 
totidem  verbis,  but  from  the  nature  of  the  case  and  the  state 
of  society,  it  is  held  to  be  sufficient  to  prove  the  circumstances 
and  conduct  usually  accompanying  an  intended  marriage  con- 
nection, from  which  the  promise  is  inferred,  (/)  so  it  would 

(a)  Whitaey  v.  Dutch,  14  Mass.  457. 

(6)  Thompson  v.  Linscott,  2  Greenl.  186.  See  also  Barnaby  v.  Barnaby, 
1  Pick.  221.  In  Cohen  v.  Armstrong  (1  M.  &  S.  724)  it  was  held,  that  a  repli- 
cation to  a  plea  of  infancy,  that  the  defendant  ratified  the  original  promise, 
was  good  after  verdict,  on  the  ground  that  ratification  imports  a  new  promise, 
after  the  party  comes  of  age.     See  Borthwick  v.  Carruthers,  1  T.  R.  648. 

(c)  Cole  V.  Saxby,  3  Esp.  R.  159.  Thompson  v.  Lay,  4  Pick.  48.  Proc- 
tor V.  Sears,  4  Allen,  95. 

(d)  4  Pick.  49,  by  Chief  Justice  Parker. 

(e)  Peake  on  Ev.  (2d  ed.)  260. 

(/)  2Stark.  Ev.(4th  Araer.  ed.)941.  SSalk.  16,64.  6  Mod.  172.  15 
Mass.  1. 


INFANTS.  59 

seem  that  if  a  minor,  who  was  thus  proved  to  have  promised 
marriage,  should,  after  coming  of  age,  continue  his  addresses, 
and  pursue  the  course  of  conduct  which  usually  evinces  an 
existing  engagement,  he  should  be  held  to  have  ratified  his 
original  promise. 

It  is  generally  stated  in  the  books  that  it  is  necessary  to  the 
ratification  of  a  contract  made  during  minority,  that  the  prom- 
ise to  perform  it,  made  after  the  party  is  of  full  age,  should 
be  not  only  express  and  voluntary,  but  also  be  made  with 
knowledge  that  he  is  not  legally  liable  on  the  original  con- 
tract. The  origin  of  this  last  alleged  requisite  of  a  ratifica- 
tion is  a  dictum  of  Lord  Alvanley  in  Harmer  v.  Killing,  5  Esp. 
R.  103,  which  several  judges  in  this  country  have  repeated,  {a) 
^  and  which  has  been  transferred  into  various  legal  treatises, 
English  and  American.  But  it  was  never  so  adjudged  in 
England,  nor  in  the  United  States,  with  the  exception  of  the 
case  of  Hinely  v.  Margaritz,  3  Barr,  428,  reported  without 
discussion  by  counsel  or  reasons  assigned  by  the  court.  And 
in  Morse  v.  Wheeler,  4  Allen,  570,  the  dictum  of  Lord  Alvan- 
ley was  held  not  to  be  sustained  nor  sustainable,  and  it  was 
decided  not  to  be  necessary  to  a  ratification,  that  the  new 
promise  should  be  made  with  knowledge  that  the  party  was  not 
legally  liable  on  the  old  one ;  it  being  a  long  established  legal 
principle  that  he  who  makes  an  engagement  freely  and  fairly 
cannot  be  excused  from  performing  it  by  reason  of  his  igno- 
rance of  the  law  when  he  made  it. 

Where  the  contract  is  executed  on  the  part  of  the  infant, 
or  is  a  continuing  contract  in  the  progress  of  execution,  slight 
acts  of  afl[irmance  and  recognition,  after  he  comes  of  age,  will 
ratify  it  and  prevent  his  subsequently  avoiding  it;  whether 
the  contract  relates  to  property,  &c.,  transferred  by  him  to 
another,  or  by  another  to  him. 

1.   Where  an  infant  has  transferred  property  to  another. 

If  an  infant  make  a  lease  rendering  rent,  and  accept  rent 
after  he  comes  of  age,  it  is  a  ratification  of  the  lease,  and  he 

(a)  9  Mass.  64.  1  Pick.  203.  16  Maine,  57.  11  Serg.  &  R.  311.  4 
Sneed,  118.     3  Richardson,  168. 


60  LAW   OF   CONTRACTS. 

cannot  afterwards  avoid  it.  (a)  This  was  a  case,  where,  after 
accepting  rent,  as  just  stated,  the  lessor  ousted  the  lessee,  and 
the  latter  supported  an  action  of  trespass  against  him  for  the 
interruption. 

Where  a  minor  mortgaged  his  land,  and,  on  coming  of  age, 
conveyed  it  to  another  person  in  fee,  subject  to  the  mortgage, 
which  he  recognized  in  the  second  deed,  it  was  held  to  be  a 
ratification  of  the  mortgage,  (b)  So,  if  his  guardian  lease 
his  land  for  a  terra  beyond  his  minority,  and  after  coming  of 
age  he  do  any  act  expressive  of  his  assent,  (c)  it  is  a  ratifica- 
tion. In  one  case,  where,  on  coming  of  age,  he  said  to  the 
person  to  whom  he  had  previously  given  a  lease,  "  God  give 
you  joy  of  it,"  it  was  held  by  Mr.  Justice  Mead  that  he  could 
not  afterwards  avoid  it.  (d) 

On  the  question  whether  an  infant  ratifies  his  conveyance 
of  real  estate,  or  precludes  himself  from  disaffirming  it,  by 
mere  omission,  after  coming  of  age,  to  take  measures  to  dis- 
affirm it,  there  has  not  been  an  entire  uniformity  of  opinion. 
In  1  Amer.  Lead.  Cas.  (4th  ed.)  256,  is  this  statement : 
"  Where  land  has  been  sold  by  an  infant,  it  was  said  in  Kline 
V.  Beebe,  6  Conn.  494,  where  the  acquiescence  was  for  thirty- 
five  years,  that  the  infant  ought  to  declare  his  disaffirmance 
within  a  reasonable  time ;  and  similar  dicta  may  be  found 
in  other  cases ;  but  there  seems  to  be  no  doubt,  upon  the 
decided  cases,  that  mere  acquiescence  is  no  confirmation  of 
a  sale  of  lands,  unless  it  has  been  prolonged  for  the  statutory 
period  of  limitation ;  and  that  an  avoidance  may  be  made 
any  time  before  the  statute  has  barred  an  entry.  Tucker  v. 
Moreland,  10  Peters,  58.  Drake  v.  Ramsay,  5  Ohio,  251,  255. 
Cresinger  v.  Lessee  of  Welch,  15  Ohio,  156,  193.     Boody  v. 

(a)  Ashfeild  v.  Ashfeild,  W.  Jones,  157,  affirmed  in  the  Exchequer  Cham- 
ber by  all  the  judges.     Latch,  199  and  Godb.  364. 

(h)  Boston  Bank  v.  Chamberlain,  15  Mass.  220.  Story  v.  Johnson,  2  Y.  & 
Coll.  Exch.  607.     Phillips  v.  Green,  5  Monroe,  355. 

(c)  2  Southard,  460.     Smith  v.  Low,  1  Atkins,  489. 

(d)  4  Leonard,  4.  In  Dalison,  64,  pi.  25,  it  was  decided,  that  where  an  in- 
fant sold  a  farm,  and  at  full  age  received  part  of  the  price,  he  might  never- 
theless avoid  the  sale.     This  is  not  now  law,  the  ground  of  the  decision  being 


INFANTS.  61 

M'Kenney,  23  Maine,  517,  523,  524.  (a)  That  slight  or  vague 
declarations  will  not  amount  to  a  ratification.  Glamorgan  i\ 
Lane,  9  Missouri,  447,  473.  There  may,  however,  be  an  ac- 
quiescence and  assent  under  such  circumstances  as  to  amount 
to  an  equitable  estoppel  upon  the  vendor.  Hartman  v.  Kendall, 
4  Ind.  403.  Thus,  in  Wheaton  v.  East,  5  Yerg.  41,  62,  it  was 
held,  where  an  infant  had  sold  land,  and  after  coming  of  age 
saw  the  purchaser  making  large  expenditures  in  valuable  im- 
provements, and  said  nothing  in  disaffirmance  for  four  years, 
that  the  circumstances  were  such  as  not  to  excuse  this  long 
silence;  and  there  being  evidence  that  on  several  occasions  the 
vendor  had  said,  after  age,  that  he  had  sold  the  land  and  been 
paid  for  it  and  was  satisfied,  and  had  authorized  a  proposi- 
tion to  be  made  for  the  purchase  of  it,  it  was  held  that  the 
sale  was  confirmed.  And  in  like  manner,  in  Wallace's  Lessee 
V.  Lewis,  4  Harrington,  75,  80,  it  was  held  that  an  infant's 
acquiescing  in  a  conveyance  for  four  years  after  age  and 
seeing  the  property  extensively  improved,  would  be  a  con- 
firmation. And  see  Jones  v.  Phoenix  Bank,  4  Selden,  235. 
Though  mere  lapse  of  time  will  not  be  a  confirmation,  un- 
less continued  for  twenty-one  years,  yet  the  lapse  of  a  less 
period,  in  connection  with  other  circumstances,  may  amount 
to  a  ratification.  15  Ohio,  ubi  sup.  Norris  v.  Vance,  3 
Richardson,  64."  {b)     In  Ferguson  v.  Bell,  17  Missouri,  347, 

that  the  original  contract  was  void,  which  would  now  be  regarded  as  voidable, 
and  the  acceptance  of  part  payment  as  a  ratification. 

(a)  To  those  cases  may  be  added  Jackson  v.  Carpenter,  11  Johns.  539. 
Jackson  v.  Burcliin,  14  Johns.  124.  Doe  v.  Abernathy,  7  Blackf.  442.  Em- 
mons V.  Murray,  16  N.  Hamp.  394,  395.  Voorhies  v.  Voorhies,  24  Barb.  153. 
Urban  v.  Grimes,  2  Grant,  96.     Vaughan  v.  Parr,  20  Ark.  600. 

(b)  By  statute  in  Iowa,  (before  referred  to  for  another  purpose,)  a  minor  is 
bound  by  all  his  contracts,  unless  he  disaffirms  them  within  a  reasonable  time 
after  he  attains  his  majority.  In  Jenkins  v.  Jenkins,  12  Iowa,  199,  in  a  suit  to 
avoid  a  deed  of  real  estate  made  by  the  complainant  while  an  infant,  the  court 
said  that  what  was  a  reasonable  time,  within  the  meaning  of  the  statute,  must 
of  course  depend  upon  the  circumstances  of  each  case  ;  and  that  in  the  case 
before  them,  no  special  equitable  circumstances  were  shown  why  the  com- 
plainant should  sooner  have  manifested  his  disaffirmance,  and  that  his  delay 
was  not  unreasonable. 

By  statute  in  Illinois,  a  minor,  in  order  to  revoke  his  conveyance  of  real 


62  LAW   OP   CONTRACTS. 

where  an  infant  executed  a  deed,  and  after  coming  of  age 
expressed  satisfaction  with  her  bargain,  received  part  of  the 
consideration  money,  and  spoke  of  an  intention  to  make  a 
confirmatory  deed,  but  died  suddenly  without  doing  so,  it  was 
held  that  this  was  a  sufficient  ratification.  See  also  Bostwick 
V.  Atkins,  3  Corast.  53. 

2,  Where  property,  &c.,  is  transferred  to  an  infant. 

If  he  takes  a  conveyance  of  land  during  minority,  and  re- 
tains possession  after  he  is  of  age,  he  ratifies  the  conveyance 
and  cannot  afterwards  avoid  it,  {a)  or  if  he  bargains  and  sells 
the  same  land  to  a  stranger,  (b)  Or  if  he  makes  an  exchange 
of  land,  and  after  he  is  of  age,  continues  in  possession  of  the 
land  received  in  exchange,  (c)  So,  if  he  takes  a  lease  render- 
ing rent,  and  continues  in  the  occupation  of  the  land,  after  he 
comes  of  age.  (d)  In  such  cases,  the  disaffirmance  must  be 
made  in  a  reasonable  time  after  coming  of  age  ;  but  where  so 
much  must  depend  on  circumstances,  it  is  impossible  to  fix 
any  period  as  a  reasonable  one  in  all  cases.  1  Piatt  on 
Leases,  528,  529. 

Where  an  award  was  made,  on  a  submission  by  a  minor's 
guardian,  that  the  minor  should  pay  his  mother  an  annuity  in 
lieu  of  dower  in  his  estate,  and  he  accepted  the  estate  free  of 
dower,  and  after  he  was  of  age  enjoyed  it  thus  free,  he  was 
held  to  have  ratified  the  award,  (e) 

If  "  consentable  lines  "  of  real  property  are  run,  and  agreed 
upon  by  a  minor,  and  he  acquiesces  in  them  after  he  comes  of 
age,  it  seems  to  be  a  ratification  of  the  boundaries.  (/)  If  an 
infant  makes  an  agreement,  and  receives  interest  under  it  after 
he  comes  of  age,  chancery  will  decree  that  he  perform  it.  (g) 

estate,  must  commence  proceedings  within  three  years  after  coming  to  full 
age.     Cole  v.  Pennoyer,  14  lUin.  158. 

(a)  Lynde  v.  Budd,  2  Paige,  191.  Dana  v.  Coombs,  6  Greenl.  89.  Arm- 
field  V.  Tate,  7  Ired.  258. 

(b)  Hubbard  v.  Cummings,  1  Greenl.  11. 

(c)  Dalison,  64.     2  Vernon,  225.     Co.  Lit.  51  b.     Shep.  Touch.  299. 
00   Com.  Dig.  Enfont,  C.  6. 

(e)  Barnaby  v.  Barnaby,  1  Pick.  221. 
(/)  Brown  v.  Caldwell,  10  Serg.  &  K.  114. 
(g)  Franklin  v.  Thornebury,  1  Vernon,  132. 


INFANTS.  63 

If,  after  full  age,  he  occupy  and  enjoy  a  copyhold  tenement, 
he  is  liable  to  pay  the  fine  due  on  admittance,  (a)  So,  if  he 
make  an  unequal  partition  of  lands,  and,  after  he  is  of  age, 
receive  the  profits  of  the  part  allotted  to  him,  he  ratifies  the 
partition.  (6) 

In  the  case  of  Holmes  v.  Blogg,  (c)  where  a  lease  was  taken 
by  an  infant  and  an  adult,  as  partners,  though  the  infant  did 
not  continue  in  possession  after  he  came  of  age,  and  dissolved 
the  partnership,  yet  Mr.  Justice  Park  inclined  to  hold  that 
unless  there  were  some  act  of  disaffirmance,  the  party  was 
bound  by  his  original  agreement ;  and  ]\Ir.  Justice  Dallas  said, 
that  "  in  every  instance  of  a  contract  voidable  only  by  an  infant 
on  coming  of  age,  he  is  bound  to  give  notice  of  disaffirmance 
of  such  contract  in  a  reasonable  time."  This,  however,  was 
not  the  point  adjudged  in  that  case.  Yet  it  has  since  been 
repeatedly  decided  that  the  omission  to  disaffirm  in  a  reason- 
able time  after  coming  of  age,  and  the  retaining  and  use  of 
property  bought  by  him,  are  elTectual  evidence  of  a  ratification 
of  a  purchase  of  personal  property,  (d)  But  where  the  sellers 
of  goods  to  an  infant  sued  him  for  the  price,  three  days  be- 
fore he  came  of  age,  and  attached  them,  and  they  remained 
in  the  hands  of  the  attaching  officer  at  the  time  of  the  trial 
of  the  suit,  and  the  defendant  gave  no  notice,  on  coming  of 
age,  of  his  intention  not  to  be  bound  by  the  contract,  it  was 
held  that  there  was  not  a  ratification  of  it,  and  that  infancy 
was  a  defence  to  the  suit,  (e) 

In  the  case  of  Goode  v.  Harrison,  5  B.  &  Aid.  147,  where 
an  infant  had  been  in  partnership  with  an  adult  until  within 
a  short  period  of  his  coming  of  age,  he  was  held  liable  for 
goods  sold  to  his  former  partner,  after  he  came  of  age,  because 

(a)  Evelyn  v.  Chichester,  3  Bur.  1717. 
(6)  Lit.  §  258.     Co.  Lit.  171. 

(c)  8  Taunt.  35. 

(d)  Lawson  v.  Lovejoy,  8  Greenl.  405.  Delano  v.  Blake,  11  Wend.  85. 
Deason  v.  Boyd,  1  Dana,  45.  Kline  j;.  Beebe,  6  Conn.  494.  Boyden  i-.  Boy- 
den,  9  Met.  519.  Cheshire  v.  Barrett,  4  McCord,  241.  Robbins  v.  Eaton,  10 
N.  Hamp.  561.  Richardson  v.  Boright,  9  Verm.  368.  Henry  v.  Root,  33 
N.  Y.  Rep.  526,  551. 

(e)  Smith  v.  Kelley,  13  Met.  309. 


64  LAW   OF   CONTRACTS. 

he  had  not  given  notice  of  a  dissolution  of  the  partnership. 
This  case  was  not  decided  on  grounds  peculiar  to  infancy. 
Partners  who  retire  are  always  liable,  even  after  dissolution 
of  copartnership,  until  notice  is  given.  Had  the  goods  been 
furnished  before  the  minor  came  of  age,  he  would  not  have 
been  chargeable ;  his  infancy  would  have  protected  him,  as 
well  after  the  dissolution  as  before.  But,  on  coming  of  age, 
he  thereafter  incurred  the  same  liabilities,  and  was  held  to  the 
same  duties,  concerning  the  partnership,  as  if  he  had  been  of 
full  age  when  it  existed.  So  in  Miller  v.  Sims,  2  Hill's  (S.  C.) 
Rep.  479,  it  was  held  that  where  one,  who  was  a  partner  dur- 
ing infancy,  concurred  in  carrying  on  the  partnership,  or  re- 
ceived profits  from  it,  after  coming  of  age,  this  amounted  to  a 
ratification  of  the  partnership  and  rendered  him  liable  on  a 
note  of  the  firm  given  during  his  minority,  without  his  knowl- 
edge. Whether  an  infant  is  liable,  in  such  case,  on  a  note  of 
which  he  has  no  knowledge,  was  doubted  in  Crabtree  v.  May, 
1  B.  Monroe,  289.  In  Dana  v.  Stearns,  3  Cush.  372,  where  a 
partner,  before  coming  of  age,  dissolved  the  partnership  and 
sold  his  property  therein  to  his  copartner,  taking  his  note 
therefor,  secured  by  mortgage,  and  his  obligation  to  pay  the 
debts  of  the  firm,  and  after  coming  of  age  proved  his  note 
against  the  estate  of  his  copartner  in  insolvency,  and  in- 
stituted proceedings  to  enforce  his  claim  under  the  mortgage, 
it  was  decided  that  he  had  not  ratified  the  partnership. 

There  are  some  contracts  made  by  infants  which  are  ex- 
cepted from  the  general  rule.  They  are  neither  void  nor 
voidable,  but  are  obligatory  ab  initio,  and  need  no  ratifica- 
tion. 

1.  Where  a  statute  authorizes  an  infant  to  make  a  contract 
for  the  public  service,  (as  to  enlist  into  the  army  or  navy)  such 
contract  is  deemed  to  be  for  his  benefit,  and  is  neither  void  nor 
voidable,  (a) 

2.  Contracts  of  marriage,  if  executed,  are  binding,  and  can- 
not be  avoided  on  the  ground  of  infancy. 

By  the  common  law,  the  age  of  consent  to  a  marriage  is 

(a)  United  States  v.  Bainbridge,  1  Mason,  71.  See  11  Mass.  65,  71. 
Cooke,  143.     4  Binn.  487.     11  Serg.  &  R.  93.     1  ib.  353. 


INFANTS.  '  65 

fourteen  years  in  a  male,  and  twelve  in  a  female  infant.    This 
is  called  the  age  of  discretion,  but  not  full  age. 

If  a  boy  over  fourteen  and  a  girl  over  twelve  years  of  age 
are  married,  the  marriage  is  as  valid  and  indissoluble  as  if 
they  were  of  full  age.  But  if,  at  the  time  of  marriage,  either 
of  them  be  under  the  age  of  discretion,  such  party,  on  arriving 
at  that  age,  may  disaffirm  the  marriage,  without  the  interposi- 
tion of  any  tribunal,  or  any  process  of  divorce.  The  disaf- 
firmance, however,  cannot  be  made  before  the  age  of  discre- 
tion. 

If  one  of  the  married  parses  be  of  years  of  discretion,  and 
the  other  not,  the  elder  party,  when  the  other  comes  to  such 
years  (and  not  before),  may  disaffirm  the  marriage. 

If,  at  the  age  of  discretion,  they  agree  to  continue  together, 
they  need  not,  by  the  common  law,  be  married  again.  Their 
continued  cohabitation  is  a  confirmation  of  the  original  con- 
tract. So,  if  a  boy  under  fourteen  takes  a  wife  over  twelve 
years  of  age,  and  sues  a  third  person  for  taking  her  away, 
and  "  makes  any  continuation  of  the  suit "  after  he  is  four- 
teen years  old,  he  ratifies  the  marriage,  and  cannot  afterwards 
avoid  it.  But  if  the  wife,  in  such  case,  be  under  twelve  years, 
the  prosecution  of  the  suit,  after  he  is  fourteen,  would  not,  it 
seems,  produce  this  effect ;  for,  on  her  becoming  twelve  years 
old,  she  would  have  a  right  to  disaffirm  the  marriage  ;  and,  by 
a  strange  anomaly,  before  mentioned,  he  would  have  the  same 
right ;  "  because,"  says  Lord  Coke,  "  in  contracts  of  matri- 
mony, either  both  must  be  bound,  or  equal  election  of  dis- 
agreement given  to  both ;  and  so  e  converso,  if  the  woman  be 
of  the  age  of  consent  and  the  man  under."  Therefore,  a  man 
twenty  years  old  may  marry  a  girl  of  eleven,  or  a  woman  of 
twenty  may  marry  a  lad  of  thirteen,  they  may  live  together  a 
year,  and  yet  because  the  junior  party  at  that  time  has  the 
power  to  disaffirm  the  marriage,  the  senior  shall  also  have  the 
same  power,  although  the  junior  may  desire  to  ratify  the  con- 
nection, (fl) 

It  has  been  before  seen  that  an  infant's  promise  of  marriage 

(a)  See  Co.  Lit.  79  and  notes  44  and  45.     1  Rol.  Ab.  341.     Bac.  Ab.  In- 
fancy  and  Age,  A.     1  Gray,  121.     7  ib.  483.     1  Chip.  254. 


66  *  LAW   OF   CONTEACTS. 

is  voidable,  (a)  but  that  an  adult's  promise  to  an  infant  is 
binding ;  and,  a  fortiori,  it  would  seem,  that  an  actual  mar- 
riage by  an  adult  should  be  binding.  If  parties  are  by  law 
allowed  to  marry  before  full  age,  good  sense  and  good  morals 
seem  to  require  that  the  marriage,  if  not  wholly  void  for  some 
legal  defect,  should  be  obligatory  on  both  the  parties. 

3.  By  the  custom  of  London,  a  minor  may  bind  himself  as 
an  apprentice,  and  his  covenants  will  be  obligatory.  Infancy 
is  no  defence  to  a  suit  against  him  for  violation  of  his  inden- 
tures, (b)  Bat  it  is  otherwise  by  the  common  law  of  England, 
and  also  under  the  statutes  of  Elizabeth,  and  the  statutes  of 
Massachusetts  and  New  York,  (c)  Still,  although  he  is  not 
liable  for  breach  of  his  covenants,  he  cannot  avoid  and  dis- 
solve the  indentures.  They  are  so  far  binding  upon  him,  that 
the  master  may  enforce  his  rights  under  them ;  and  the  legal 
incidents  of  service  as  an  apprentice  attach  to  the  relation 
thus  formed  between  the  parties,  (d)  As  this  doctrine  is 
adopted  for  the  infant's  benefit,  on  the  ground  that  it  is  for 
his  advantage  to  be  held  to  an  apprenticeship,  it  does  not  ap- 
ply where  his  master  has  run  away  or  deserted  him,  so  that 
he  cannot  reap  the  advantages  of  the  contract,  (e) 

4.  The  acts  of  the  Jcing,  whether  private  or  official,  cannot 
be  avoided  on  the  ground  of  infancy.  And,  in  general,  the 
acts  of  an  infant,  that  do  not  touch  his  interest,  but  which 
take  effect  from  an  authority  which  he  is  by  law  trusted  to 
exercise,  are  binding;  as  if  an  infant  executor  receives  and 
acquits  debts  due  to  the  testator,  or  an  infant  officer  of  a  cor- 
poration joins  in  corporate  acts,  or  any  other  infant  does  the 
duties  of  an  office  which  he  may  legally  hold.  (/) 

5.  By  special  local  customs,  as  gavelkind,  &c.,  infants  may 

(«)  Ante,  pp.  38,  39.     5  Sneed,  659. 

(b)  Horn  v.  Chandler,  1  Mod.  271.  Burton  v.  Palmer,  2  Bulstr.  192. 
Stanton's  case,  Mo.  135.     See  also  Eden's  case,  2  M.  &  S.  226. 

(c)  Cro.  Jac.  494.  Cro.  Car.  179.  Hutton,  63.  7  Mod.  15.  8  Mod. 
190.     Blunt  V.  Melcher,  2  Mass.  228.     M'Dowle's  case,  8  Johns.  331. 

(rf)  5  Dowl.  &  Ryl.  339  and  3  Barn.  &  Cres.  484.  See  also  6  T.  R.  558, 
652. 

(e)  3M.  &S.  49  7. 

(/)  Bac.  Ab.  Infancy  &  Age,  B.     3  Bur.  1802. 


INFANTS.  67 

make  binding  contracts  respecting  their  property,  after  they 
arrive  at  years  of  discretion.  So,  after  that  age,  they  may,  by 
the  general  common  law,  do  many  binding  acts,  as  the  elec- 
tion of  guardians,  the  making  of  a  will,  disposing  of  personal 
property,  &c.  (a) 

6.  "  Generally,"  says  Lord  Coke,  "  whatsoever  an  infant  is 
bound  to  do  by  law,  the  same  shall  bind  him,  albeit  he  doth 
it  without  suit  at  law  ; "  (b)  as,  if  he  make  equal  partition 
of  lands,  or  an  equal  assignment  of  dower,  or  release  an 
estate  mortgaged,  on  payment  of  the  sum  for  securing  which 
the  mortgage  was  given. 

7.  It  is  laid  down  in  Comyns's  Digest,  Enfant,  C.  6,  and 
in  some  other  books,  that  if  an  infant  take  a  lease  of  land,  and 
enter  upon  and  enjoy  it,  he  shall  be  charged  with  the  rent; 
and  the  case  of  Kirton  v.  Eliott  (c)  is  cited  in  support  of 
this  position.  The  supposed  doctrine  of  that  case  is  recog- 
nized by  Mr.  Justice  Yates  ;  (d)  and  Lord  Mansfield  (e)  enu- 
merates payment  of  rent  among  the  acts  which  an  infant  is 
compellable  to  do ;  and,  in  another  case,  (/)  he  says,  "  if  an 
infant  takes  an  estate  and  is  to  pay  rent  for  it  he  shall  not 
hold  the  estate,  and  defend  against  payment  on  the  ground 
of  infancy." 

If  this  be  law,  it  rests  merely  on  authority  unsupported  by 
analogy.  There  is  no  difference  in  principle  between  the 
rent  of  an  estate  enjoyed  by  an  infant,  and  any  other  prop- 
erty which  he  has  received  and  used.  If  he  have  a  family, 
the  rent  of  a  house  might  fairly  be  classed  among  necessaries 
for  which  he  would  be  liable  to  pay.  But  this  does  not  ap- 
pear to  have  been  the  ground  of  the  decision  in  the  case  re- 
ported by  Bulstrode.  It  is  the  same  case,  under  a  different 
name,  which  is  found  also  reported  by  Croke,  (g)  and  Brown- 
low,  (h)  According  to  their  reports,  the  question  was  dis- 
cussed on  a  demurrer  to  the  defendant's  plea  of  infancy,  and 
the  court  held  the  lease  not  to  be  void,  but  voidable  at  the  in- 

(ft)  1  Hale  P.  C.  17.     Bac.  AK  Infancy  &  Age,  A.  B. 

(b)  Co.  Lit.  38  a,  172  a.     3  Burr.  1801.     6  Mass.  80.     13  Met.  372. 

(c)  2Bulst.  69.  (d)  3  Bur.  1719.  (e)  3  Bur.  1801. 
(y)  2  Eden.  72.                  (^g)  Cro.  Jae.  320.              (h)  1  Brownl.  120. 


68  LAW   OP   CONTRACTS. 

fant's  election,  and  that  as  he  came  of  age  before  rent  day,  he 
was  answerable  for  the  rent ;  which  would  seem  to  have  been 
on  the  ground  of  a  ratification,  {a) 

Bulstrode  states,  that  the  defendant  demurred  to  the  decla- 
ration which  stated  that  he  was  an  infant,  and  that  he  after- 
wards waived  his  demurrer,  and  pleaded  to  issue.  What  the 
issue  was  does  not  appear.  "  The  case  then  appeared,"  says 
Bulstrode,  "  to  be  :  A  lease  was  made  to  an  infant,  rendering 
rent;  whether  he  shall  be  charged  with  the  payment  of  this 
rent,  or  riot,  was  the  question."  At  the  end  of  the  report,  he 
says,  "  the  court  were  all  clear  of  opinion  that  the  infant  les- 
see was  liable  to  pay  the  rent."  The  ground  of  the  decision 
does  not  appear.  But  from  the  whole  case,  taken  in  connec- 
tion with  the  other  reports  of  it,  it  seems  most  probable  that 
the  court  considered  the  continuance  in  possession,  after  the 
lessee  came  of  age,  as  a  ratification,  and  decided  the  case  on 
this  point;  although  this  report  does  not  mention  his  having 
arrived  at  full  age  ;  for  Mr.  Justice  Dodderidge  is  made  by 
Bulstrode  to  say,  "  if  a  lease  be  made  to  husband  and  wife, 
rendering  rent,  the  husband  dies,  the  wife  may  waive  this, 
and  so  avoid  payment  of  the  rent ;  but  if  she  continue  the 
possession,  she  shall  be  charged  with  the  rent."  There 
does  not  seem  to  be  much  pertinency  in  this  illustration, 
unless  the  continued  possession  of  the  infant,  after  he  came 
of  age,  was  the  ground  on  which  he  was  held  liable  to  pay 
the  rent. 

The  loose  manner  in  which  this  case  is  stated  by  all  the 
reporters  hardly  warrants  its  being  regarded  as  authority  for 
any  anomalous  doctrine,  or  for  an  exception  to  any  established 
rule.  And  it  is  noticeable  that  in  1  Rol.  Ab.  731,  2  D'Anvers 
Ab.  774,  Vin.  Ab.  Enfant,  K.  and  Bac.  Ab.  Infancy  and  Age, 
I.  8,  the  case  of  Kirton  v.  Eliott  is  cited  to  the  position  that 
if,  after  coming  of  age,  he  to  whom  premises  were  leased  dur- 
ing his  infancy,  continues  in  the  occupation,  he  is  chargeable 
with  the  arrears  of  rent  incurred  during  infancy.  And  thus 
Lord  EUenborough,  in  3  M.  &  S.  481,  understood  the  case. 

(rt)  How  the  defendant's  coming  of  age  before  rent  day  could  appear  to 
the  court  on  a  demurrer  to  his  plea  of  infancy  is  not  readily  seen. 


INFANTS.  69 

See  also  2  Kent  Com.  (11th  ed.)  263,  264.  23  Maine,  524.  1 
Pick.  224.     But  see  5  Exch.  126.  (a) 

8.  The  most  important  exception  to  the  general  rule  is  that 
of  contracts  for  necessaries. 

It  has  always  been  held,  that  an  infant  is  bound  to  pay  for 
such  necessary  things  as  relate  immediately  to  his  person,  as 
his  meat,  drink,  lodgings,  apparel,  medical  attendance,  and  for 
such  instruction  as  may  profit  him  in  subsequent  life,  (b)  He 
is  also  liable  for  such  necessaries,  if  supplied  to  his  wife  and 
lawful  children  ;  and,  during  coverture,  for  the  debts  of  his 
wife  contracted  before  marriage,  (c) 

The  word  "  necessaries  "  is  a  relative  term,  and  not  con- 
fined to  such  things  as  are  positively  required  for  mere  per- 
sonal support ;  but  is  to  be  construed  with  reference  to  the 
estate  and  degree,  the  rank,  fortune,  and  age  of  the  infant. 
6  Mees.  &  Welsh.  42.  1  Gray,  458.  Thus,  a  livery  for  the 
servant  of  an  infant  captain  in  the  English  army  was  con- 
sidered necessary.  Lord  Kenyon  said  he  could  not  say  it  was 
not  necessary  for  a  gentleman  in  the  defendant's  situation  to 
have  a  servant ;  and  if  it  were  proper  for  him  to  have  one, 
it  was  equally  necessary  that  the  servant  should  have  a 
livery,  (d)  But  it  is  otherwise,  of  cockades  ordered  for  the 
soldiers  of  his  company,  (e)  and  of  a  chronometer  sold  to  an 

(a)  This  discussion  of  an  infant's  liability  for  rent  was  first  published  in  the 
U.  S.  Law  Intelligencer,  vol.  iii.  p.  16. 

(b)  Finch,  103.  Co.  Lit.  172,  a.  1  Wooddeson,  402.  Bing.  on  Infancy, 
87.  6  Mass.  80,  by  Chief  Justice  Parsons.  Concerning  instruction  given  to 
an  infant,  little  is  found  in  the  English  reports,  and  nothing  definite.  It 
seems  to  have  been  held  that  instruction  in  reading  and  writing  (1  Sid.  112) 
and  schooling,  (Palm.  528  and  W.  Jon.  182,)  are  regarded  as  necessaries.  In 
Vermont,  it  was  decided  that  a  collegiate  education  was  not  among  necessa- 
ries for  him  who  was  there  sought  to  be  charged  therefor ;  but  Royce,  J.  in 
giving  the  opinion  of  the  court,  said  that  ''  a  good  common-school  education  is 
now  fully  recognized  as  one  of  the  necessaries  for  an  infant."  Middlebury 
College  V.  Chandler,  16  Verm.  686.  See  6  Mees.  &  Welsb.  48.  The  law 
of  apprenticeship  in  this  country  is  regulated  by  the  statutes  of  the  several 
states. 

(c)  Turner  v.  Trisby,  1  Strange,  168.  Paris  v.  Stroud,  Barnes,  (2d  ed.) 
95.     Bui.  N.  P.  155.     Reeve  Dom.  Rel.  234.     9  "Wend.  238.     7  Met.  164. 

(d)  Hands  v.  Slaney,  8  T.  R.  578.  (e)  lb. 


70  LAW  OF   CONTRACTS. 

infant  lieutenant  in  the  royal  navy,  (a)  Regimentals  for  an 
infant  member  of  a  volunteer  corps  were  held  to  be  neces- 
sary, (b) 

The  law  distinguishes  between  persons,  as  to  the  fitness  of 
necessaries,  as  between  a  nobleman's  and  gentleman's  son  ; 
so  also  as  to  the  time  and  place  of  education,  as  at  school, 
Oxford,  and  the  inns  of  court,  (c)  "  Balls  and  serenades  at 
nisht  must  not  be  accounted  necessaries,"  even  in  the  case  of 
a  nobleman,  (d)  Suits  of  satin  and  velvet  with  gold  lace  were 
held,  in  the  time  of  Queen  Elizabeth,  not  to  be  necessary  for 
an  infant,  although  he  were  a  gentleman  of  the  chamber  to  the 
Earl  of  Essex.  But  a  doublet  of  fustian  and  hose  of  cloth 
were  held  to  be  suitable  to  his  estate  and  degree,  (e) 

"  Horses  may  be  very  fit  for  an  infant,  as  on  account  of  his 
quality  or  constitution,"  says  Mi'.  Justice  Chappie  ;  and,  if  they 
are  suitable  to  his  condition,  he  is  liable  for  the  price  of  them, 
and  for  their  keeping  and  medicines.  (/) 

Lord  Mansfield  said,  (g")  that  a  sum  advanced  for  taking 
an  infant  out  of  jail  is  for  necessaries ;  and  Lord  Alvanley 
held,  (h)  that  money  advanced  to  release  an  infant  from  cus- 
tody on  mesne  process,  for  a  debt  contracted  for  necessaries, 
or  from  custody  on  execution,  is  paying  for  necessaries.  So 
if  money  be  laid  out  for  necessaries  furnished  to  an  infant,  he 
is  liable  to  the  person  thus  advancing  the  money.  {()       So  if 

(a)  Berolles  v.  Ramsay,  HoltlST.  P.  Rep.  77. 

(b)  Coates  v.  Wilson,  5  Esp.  R.  152. 

(c)  Rainsford  v.  Fenwick,  Carter,  215.  See  Wharton  v.  Mackenzie,  5  Ad. 
&  El.  N.  S.  606.     Brooker  v.  Scott,  11  Mees.  &  Welsh.  67. 

(d)  By  Chief  Justice  Vanghan,  Carter,  216. 

(e)  Mackerell  v.  Bachelor,  Gouldsb.  168  and  Cro.  Eliz.  583. 

(/)  Brooks  V.  Crowse,  Andr.  277  and  2  Strange,  1100,  by  the  name 
of  Clowes  V.  Brooke.  Barber  v.  Vincent,  1  Freeman,  531.  In  Rainwater  v. 
Durham,  2  Nott  &  McCord,  524,  three  of  the  judges  of  South  Carolina,  against 
the  opinion  of  the  other  two,  held  that  a  horse  was  not  necessary  for  an  in- 
fant, who  was  married  and  had  a  farm.  See  also  1  McCord,  572.  1  Bibb, 
521.     2  Humph.  27.     13  Met.  306.     7  Car.  &  P.  52. 

ig)  2  Eden,  72. 

(h)  Clarke  v.  Leslie,  5  Esp.  R.  28. 

(i)  Ellis  V.  Ellis,  5  Mod.  368.  Earle  v.  Peale,  1  Salk.  387  and  10  Mod.  67. 
Rearsby  &  Cuffor's  case,  Godb.  219.     Swift  v.  Bennett,  10  Cush.  436. 


INFANTS.  71 

one,  who  is  surety  on  a  note,  &c.,  given  by  an  infant  for 
necessaries,  pay  the  money,  the*  infant  is  liable  to  him  in  an 
action  for  reimbursement,  (a) 

If  an  infant  lives  with  his  parent,  guardian,  or  other  person 
under  whose  care  he  is  placed  by  his  parent,  guardian  or 
friend,  and  is  properly  maintained,  he  cannot  bind  himself  to 
a  stranger  for  necessaries.  Thus,  where  an  action  was 
brought  for  ornamental  clothes  sold  to  an  infant  who  lived 
with  her  mother  and  was  decently  provided  for  by  her,  the 
com-t  decided  that  the  plaintiff  could  not  recover;  "for  no 
man,"  said  Mr.  Justice  Gould,  "  shall  take  upon  him  to  dic- 
tate to  a  parent  what  clothing  the  child  shall  wear,  at  what 
time  they  shall  be  purchased,  or  of  whom."  (b)  And  where 
a  parent,  &c.,  places  an  infant  at  board,  or  at  school,  as  the 
credit  is  given  to  the  parent,  &c.,  the  infant  is  not  liable,  (c) 

Before  a  tradesman  trusts  an  infant  for  apparent  necessa- 
ries, he  ought  to  inquire  whether  he  is  provided  for  by  his 
parents  or  friends.  And  he  is  bound  to  ascertain  the  infant's 
real  situation  in  life,  and  not  to  rely  on  appearances.  If 
therefore  he  furnish  articles  which  would  be  necessary,  if  the 
infant  were  not  already  supplied  by  his  parents,  or  if,  confid- 
ing in  false  appearances,  he  furnish  articles  too  expensive  or 
numerous  for  the  infant's  real  condition,  he  is  not  entitled  to 
recover  pay  for  them,  (d)  But  where  an  infant  furnished  a 
tailor  with  cloth  for  a  suit  of  clothes,  and  employed  him  to 
make  them,  and  provided  the  trimmings  ;  the  tailor  recovered 
pay  for  his  labor,  &c.,  although  the  clothes  were  not  suitable 
to  the  infant's  rank  and  condition,  (e) 

Goods  furnished  to  an  infant  trader  are  not   necessaries, 

(a)  7  N.  Hamp.  368. 

(b)  Bainbridge  v.  Pickering,  2  W.  Bl.  1325.  Wailing  v.  Toll,  9  Johns. 
141.  Kline  v.  L'Amoureux,  2  Paige,  419.  Edwards  v.  Higgius,  2  McCord 
Ch.  16.     See  also  16  Mass.  31.     4  Watts,  80.     15  Ark.  140. 

(c)  Duucomb  v.  Tickridge,  Aleyn,  94.     Bac.  Ab.  Infancy  and  Age,  I.  1. 
{d)  Ford  V.  Fothergill,  Peake's  Rep.  229  and  1  Esp.  R.  211.     2  Paige, 

419.  Mortara  v.  Hall,  6  Simons,  465.  Steedman  v.  Rose,  Car.  &  Marsbm. 
422.  Johnson  v.  Lines,  6  Watts  &  Serg.  80.  Story  v.  Pery,  4  Car.  &  P. 
526. 

(e)  Delaval  v.  Clare,  Latch,  156  and  Noy,  85. 


72  LAW   OP   CONTRACTS. 

although  he  gain  his  living  by  trade,  (a)  But  for  such  part  of 
goods  thus  furnished  as  he  uses  as  necessaries  in  his  family 
he  is  liable,  (b)  Labor,  &c.,  for  an  infant  mechanic,  on  arti- 
cles to  be  furnished  to  his  customers,  is  not  within  the  law  of 
necessaries,  (c) 

In  a  case  before  Mr.  Baron  Clarke,  (d)  he  ruled  that  an 
infant  was  liable  for  the  price  of  sheep  bought  to  stock  a  farm 
in  which  he  had  been  set  up.  Such  is  the  Scotch  law,  but 
not  the  law  of  England,  nor  of  this  country,  (e) 

In  Tupper  v.  Cadwell,  12  Met.  559,  it  was  held  that  an  in- 
fant was  not  liable  for  the  expense  of  repairing  his  house, 
though  the  repairs  were  necessary  to  prevent  immediate  and 
serious  injury  to  it.  And  in  New  Hamp.  Mut.  Fire  Ins.  Co.  v. 
Noyes,  32  N.  Hamp.  345,  that  he  was  not  liable  on  a  contract 
for  insurance  of  his  property  against  loss  or  damage  by  fire. 
And  in  Phelps  v.  Worcester,  11  N.  Hamp.  51,  that  he  was  not 
liable  for  counsel  fees  and  expenditures  in  a  suit  at  law 
brought  to  protect  his  title  to  an  estate. 

In  the  case  of  Ellis  v.  Ellis,  (/)  it  was  decided  that  money 
lent  to  an  infant,  for  the  purpose  of  buying  necessaries,  can- 
not be  recovered  of  him.  In  this  case,  it  appears,  from  some 
of  the  reports  of  it,  that  the  court  held  that  if  the  money 
were  actually  expended  for  necessaries,  the  infant  would  be 
chargeable,  (g-)  But  the  weight  of  authority  is,  that  an  in- 
fant is  not  liable  at  law  for  money  lent  for  thhi  purpose  and 
actually  thus  appropriated.  The  contract  arises  upon  the 
lending,  and  as  is  said  by  the  court,  (h)  "  the  law  knows  of 
no  contracts  but  what  are  good  or  bad  at  the  time  of  the 
contract  made ;  and  not  to  be  one  or  the  other  according  to  a 

(a)  Whittingham  v.  Hill,  Cro.  Jac.  494.  Why  wall  v.  Champion,  2  Strange, 
1083.     Mason  v.  Wright,  13  Met.  308. 

(b)  Turberville  v.  Whitehouse,  12  Price,  692  and  1  Car.  &  P.  94. 

(c)  Dilk  V.  Kcighley,  2  Esp.  R.  480. 

(d)  Mentioned  in  Bui.  N.  P.  154  and  Onslow's  N.  P.  150. 

(e)  Reeve  Dom.  Rel.  234.     2  Nott  &  M'Cord,  525. 
(/)  5  Mod.  368.     12  Mod.  197.     1  Ld.  Raym.  344. 

(ff)  See  also  Bui.  N.  P.  154.  3  Salk.  196,  197.  And  it  was  decided 
in  Smith  (,'.  Oliphant,  2  Sandf.  306,  that  he  was  liable  for  money  lent  in  and 
about  the  purchase  of  necessaries  for  him,  and  which  was  applied  under  his 
guidance,  directly  by  the  lender.  CO  10  Mod.  67. 


INFANTS.  73 

subsequent  contingency."  (a)  The  lender,  however,  is  en- 
titled to  relief  in  chancery.  (6) 

Whether  articles  furnished  to  an  infant  are  of  the  classes 
which  are  necessaries  suitable  to  his  condition,  is  a  question 
of  law;  whether  they  are  actually  necessary,  and  of  reason- 
able prices,  is  a  question  of  fact ;  "  our  being  judges  of  the 
necessaries,"  say  the  court  in  Carter,  216,  "  is  to  the  nature 
of  the  thing,  not  to  the  particulars ;  that  indeed  must  be  tried 
by  the  jury."  (c)  But  in  this  class  of  cases,  as  in  others, 
the  court  wUl  set  aside  a  verdict  that  is  against  the  evi- 
dence, (d) 

In  10  Mod.  85,  it  was  said,  arguendo,  that  an  infant  cannot, 
either  by  a  parol  contract  or  a  deed,  bind  himself  even  for 
necessaries  in  a  sum  certain ;  for  should  he  promise  to  give 
an  unreasonable  price  for  them,  that  would  not  bind  him  ; 
and  therefore  it  may  be  said  that  his  contract  for  necessaries, 
quatenus  a  contract,  does  not  bind  him  any  more  than  his 
bond  would,  but  only  since  an  infant  must  live,  as  well  as  a 
man,  the  law  gives  a  reasonable  price  to  those  who  furnish 
him  with  necessaries.  And  it  is  said  by  Chancellor  Kent  (2 
Com.  6th  ed.  240,  11th  ed.  263)  that  an  infant  is  not  bound 
to  pay  for  articles  furnished  more  than  they  were  really 
worth  to  him  as  articles  of  necessity,  and  consequently  he 
may  not  be  bound  to  the  extent  of  his  contract;  nor  can  he 
be  precluded,  by  the  form  of  the  contract,  from  inquiring  into 
the  real  value  of  the  necessaries  furnished.  See  2  Nott  & 
M'Cord,  525.     1  Bibb,  520. 

Conformably  to  .these  views,  it  is  held  that  an  infant  is  not 

(a)  Earle  v.  Peale,  1  Salk.  386.  Darby  v.  Boucher,  ib.  279.  Proubart  v. 
Knouth,  2  Esp.  E.  472,  n.     1  P.  W.  558.     10  Cusb.  438.     5  R.  I.  347. 

(l)  2  Evans's  Pothier  on  Obi.  (1st  Amer.  ed.)  26.  Marlow  i'.  Pitfeild,  1 
P.  W.  558. 

(c)  Maddox  v.  Miller,  1  M.  &  S.  738.  Lowe  v.  Griffith,  1  Scott,  458  and 
1  Hodges,  30.  Peters  v.  Fleming,  6  Mees.  &  Welsh.  42.  Beeler  v.  Young, 
1  Bibb,  519.  Glover  v.  Ott,  1  McCord,  572.  Davis  v.  Caldwell,  12  Gush. 
512. 

{(1)  Harrison  v.  Fane,  1  Man.  &  Grang.  550  and  1  Scott  N.  R.  287.  Run- 
del  t'.  Keeler,  7  Watts,  239.  Johnson  v.  Lines,  6  Watts  &  Serg.  80.  Mer- 
riam  v.  Cunningham,  11  Cush.  40,  44. 


74  LAW   OF    CONTEACTS. 

liable  on  an  account  stated  ;  (a)  nor  on  a  bill  of  exchange  ac- 
cepted ;  (b)  nor  on  a  negotiable  note,  (c)  nor  on  a  cognovit,  (d) 
given  for  necessaries. 

In  an  action  on  an  account  stated,  it  was  said  in  an  early- 
case  (Latch,  169)  "  evidence  shall  not  be  upon  the  value  of 
the  things,  but  upon  the  account  only."  All  that  was  then 
required  to  maintain  such  action  was  proof  that  the  defend- 
dant  had  voluntarily  stated  the  account,  and  had  made  a 
promise,  express  or  implied,  to  pay  it.  This  was  conclusive. 
But,  at  a  later  day,  (as  said  by  Lord  Mansfield,  1  T.  R.  42,) 
gi-eater  latitude  prevailed,  and  surcharged  items  in  the  account 
were  allowed  to  be  corrected,  (e)  It  was  still  held,  however, 
that  an  infant  is  incompetent  to  state  an  account.  But  an 
account  stated  by  him  is  not  now  deemed  to  be  void,  but 
voidable  only,  and  a  proper  subject  of  ratification  on  his  com- 
ing of  age.  (/)  S.o  it  was  decided  in  Reed  v.  Batchelder,  1 
Met.  559,  in  case  of  an  infant's  negotiable  note ;  and  also 
that  upon  his  having  ratified  it,  he  was  answerable  thereon  to 
him  to  whom  the  promisee  subsequently  transferred  it.  See  a 
like  decision  by  the  supreme  court  of  New  Brunswick,  in  the 
case  of  Fisher  y.  Jewett,  Berton,  23. 

On  the  question  whether  an  infant  is  bound  by  a  note  not 
negotiable,  given  for  necessaries,  there  is  a  difference  of  opin- 
ion in  the  English  books.  But  it  is  said  in  Story  on  Notes, 
§  78,  (citing  English  and  American  books)  that  the  weight 
of  authorities  greatly  preponderates  in  favor  of  holding  such 

(a)  Pickering  v.  Gunning,  Palmer,  528.  Wood  v.  Witherick,  Latch,  169 
and  Nov,  87.  Trueman  v.  Hurst,  1  T.  R.  40.  Bartlett  v.  Emery,  1  T.  R. 
42,  note.     Ingledew  v.  Douglass,  2  Stark.  R.  36. 

(b)  Williamson  v.  Watts,  1  Campb.  552. 

(c)  Swasey  v.  Vanderheyden's  Adm'r,  10  Johns.  33.  Fenton  v.  White,  1 
Southard,  100.  Hanks  v.  Deal,  3  McCord,  257.  Bouchell  k.  Clary,  3  Bre- 
vard, 194.  McCrillis  v.  How,  3  N.  Hamp.  348.  McMinn  v.  Richmonds,  6 
Yerg.  9.     In  these  cases,  such  notes  were  held  to  be  void. 

(fl)  Oliver  V.  Woodrofie,  4  Mees.  &  Welsh.  650  and  1  Horn  &  Hurlst.  474. 

(e)  See  Tucker  v.  Barrow,  7  Barn.  &  Cres.  623.  Thomas  v.  Hawkes,  8 
Mees.  &  Welsh.  140.  Perkins  v.  Hart,  11  Wheat.  256.  Holmes  v.  D'Camp, 
1  Johns.  36. 

(/)  Williams  v.  Moor,  11  Mees.  &  Welsh.  256. 


INFANTS.  75 

notes  voidable  only.  It  was  so  held  in  Dubose  v.  Wheddon,  4 
McCord,  221.  See  also  2  Kent  Com.  (6th  ed.)  235,  (11th  ed.) 
257.     Kyd  on  Bills,  (3d  ed.)  29.     Bayley  on  Bills,  (6th  ed.)  46. 

A  bond  with  a  penalty,  given  by  an  infant  for  necessaries, 
was  early  decided  to  be  void.  Ayliffe  v.  Archdale,  Cro.  Eliz. 
920  and  Mo.  679.  See  ante,  page  40,  that  any  bond  with  a 
penalty,  given  by  him,  is  void. 

It  was  said  in  Cro.  Ehz.  920,  and  decided  in  Russel  v.  Lee, 
1  Lev.  86,  that  an  infant  is  bound  by  his  single  bill  given  for 
necessaries.  And  this  has  been  repeatedly  stated  in  later 
books.  Kyd  on  Bills,  (3d  ed.)  29.  Hurlstone  on  Bonds,  3. 
Bingham  on  Infancy,  89.  Judge  Reeve  supposes  (Dom.  Rel. 
231)  that  when  this  was  decided  the  consideration  of  a  single 
bill  might  be  inquired  into,  and  that  since  the  contrary  has 
been  held,  an  infant  should  not  be  bound  by  such  bill.  And 
in  all  the  editions  of  Chitty  on  Contracts,  it  is  doubted  whether 
he  can  now  be  so  bound.  But  this  is  a  matter  of  no  practical 
importance ;  in  England,  a  single  bill  "  being  now  as  rare  as 
a  statute  staple."  1  Campb.  553,  note.  2  Macpherson  on  In- 
fants, 498,  499.  The  case  of  Beeler  v.  Young,  1  Bibb,  509, 
was  an  action  against  an  infant  on  a  single  bill.  The  plain- 
tiff failed  to  prove  that  it  was  given  for  necessaries.  But  the 
court  expressed  no  doubt  that  the  true  value  of  necessaries 
might  be  recovered  in  such  action  ;  though  the  bill  did  not 
bind  the  infant  as  a  contract,  and  had  no  obligatory  force  as 
buch,  and  that  to  charge  him,  it  was  necessary  to  show  that 
the  articles  furnished  as  the  consideration  of  the  bill  were 
necessaries. 

In  Reeve's  Domestic  Relations,  229,  230,  and  in  2  Dane  Ab. 
364,  365,  the  law  is  thus  stated :  That  an  infant  is  not  bound 
by  any  express  contract  for  necessaries  to  the  extent  of  such 
contract,  but  is  bound  only  on  an  implied  contract  to  pay  the 
amount  of  their  value  to  him.  That  when  the  instrument 
given  by  him  as  security  for  payment  is  such  that,  by  the  rules 
of  law,  the  consideration  cannot  be  inquired  into,  it  is  void 
and  not  merely  voidable.  That  whenever  the  instrument  is 
such  that  the  consideration  thereof  may  be  inquired  into,  he 
is  liable  thereon  for  the  true  value  of  the  articles  for  which  it 


76  LAW   OP   CONTRACTS. 

was  given.  This  last  proposition  was  also  advanced  by  Chief 
Justice  Shaw  in  Stone  v.  Dennison,  13  Pick.  6,  7.  And  in 
Earle  v.  Reed,  10  Met.  387,  it  was  decided  that  a  negotiable 
note  given  by  an  infant  was  not  void  in  the  promisee's  hands, 
but  that  he  might  recover  thereon  of  the  infant  as  much  as 
the  necessariee  for  which  it  was  given  were  reasonably  worth  ; 
the  consideration  of  a  negotiable  note  being  open  to  inquiry 
when  sued  by  the  promisee.  A  like  decision  was  made  in 
Bradley  v.  Pratt,  23  Verm.  378,  where  the  full  amount  of  the 
note  was  recovered ;  it  being  proved,  or  not  denied,  that  the 
necessaries  for  which  it  was  given  M^ere  worth  that  amount. 
On  the  same  ground,  as  said  by  Mr.  Dane  (supra)  an  action 
might  be  maintained  against  an  infant  on  a  note  not  negotia- 
ble, or  a  negotiable  note  negotiated  after  it  was  dishonored. 

Whoever  shall  examine  the  foregoing  forty  pages,  will  be 
impressed  with  the  truth  of  the  remark  of  Mr.  Justice 
Thomas,  in  1  Gray,  456,  that  "  there  is  no  subject,  perhaps, 
on  which  there  has  been  more  apparent  conflict  of  opinion 
than  upon  the  effect  to  be  given  to  the  contracts  of  infants. 
Especially  is  this  so  upon  the  questions  what  contracts  are 
obligatory,  what  voidable,  what  absolutely  void,  and  how  far 
the  execution  of  the  contract  and  the  enjoyment  of  its  benefits 
by  the  infant  affect  his  power  to  rescind  and  recover  back  the 
consideration  paid,  in  cases  where  he  is  unable  or  does  not 
offer  to  restore  what  he  has  received,  or  its  equivalent,  or 
where,  from  the  nature  of  the  case,  such  restoration  is  imprac- 
ticable." There  has  been,  however,  for  half  a  century  at  least, 
a  disposition  and  a  practical  effort  of  courts  to  harmonize  and 
improve  the  law  on  these  points,  and  much  improvement  has 
been  effected.  Still,  it  must  be  admitted  that  the  law  of  in- 
fancy is  not  yet  a  satisfactorily  consistent  and  symmetrically 
compacted  system. 


NON   COMPOTES   MENTIS.  77 

2.  Non  Compotes  Mentis. 

By  non  compotes  mentis  are  here  meant  all  persons  (except 
drunkards)  of  such  mental  incapacity  as  disables  them  to 
make  a  valid  contract,  though  they  may  not  be  included  in 
either  of  Lord  Coke's  different  classes  (Co.  Lit.  247,  a.) 
spoken  of  in  the  introduction  to  Stock's  treatise  on  the  Law 
of  Non  Compotes  Mentis. 

Idiots,  lunatics,  &c.,  were  always  held  incapable  of  making 
contracts.  Finch,  102,  103.  Phillips  on  Lunacy,  1.  But 
from  the  time  of  Edward  the  Third,  until  recently,  it  was  held 
that  a  person  non  sancs  memorice,  though  afterwards  restored 
to  his  right  mind,  should  not  be  permitted  to  allege  his  own 
insanity  in  order  to  avoid  his  grant  or  other  agreement.  This 
is  the  legal  meaning  of  the  phrase,  "  a  man  shall  not  be  al- 
lowed to  stultify  himself."  BJackstone  relates  the  progress  of 
"  this  notion  "  (as  he  calls  it)  and  refers  to  most  of  the  ancient 
cases  that  support  it ;  and  they  deserve  attention  as  legal 
curiosities,  {a)  This  notion,  however,  except  as  it  affects  real 
actions,  is  now  thoroughly  exploded,  and  the  law  restored  to 
its  original  state ;  for  in  the  reign  of  Edward  the  First,  the 
adjudications  of  the  English  courts  were  not  blemished  by 
the  absurdities  which  prevailed  on  this  point  during  some  of 
the  subsequent  reigns.  See  1  Story  on  Eq.  §§  223-225.  1 
Ridgeway  P.  C.  549,  550. 

This  doctrine  was  denied  by  Fitzherbert,  (b)  and  was  as- 
sailed with  great  force  in  the  arguments  of  counsel  in  the  case 
of  Thompson  v.  Leach,  (c)  which  was  carried  by  writ  of 
error  from  the  Court  of  Common  Pleas  to  the  King's  Bench, 
and  thence  to  the  House  of  Lords.  In  the  argument  before  the 
court  of  last  resort,  counsel  said:  "'Tis  a  rule  unaccount- 
able that  a  man  shall  not  be  able  to  excuse  himself  by  the 
visitation  of  heaven,  when  he  may  plead  duress  from  men,  to 
avoid  his  own  act."  (d)  And  VVilmot,  J.,  in  delivering  an 
opinion  on  a  commission  of  errors,  in  1762,  used  nearly  the 

(a)  2  Bl.  Com.  295.  (6)  Nat.  Brev.  202. 

(c)  3  Mod.  296,  1  Show.  296,  2  Vent.  198,  Show.  P.  C.  150. 
Id)  Show.  P.  C.  154. 


78  LAW   OF    CONTRACTS. 

same  language,  and  denied  the  rale  that  "  a  natural  disability, 
which  is  the  act  of  God,  is  no  defence,"  and  declared  that  the 
reason  given  for  it  in  the  books,  namely,  «  that  a  man  cannot 
know  what  he  did  when  he  was  mad,"  was  wholly  unintelli- 
gible ;  "for  what  inconsistency,"  he  asks,  "  is  there  in  saying 
he  does  not  know  he  ever  did  such  an  act,  but  if  he  did,  he 
was  mad  when  he  did  it  ?  "  (a) 

In  Yates  v.  Boen,  (b)  in  debt  on  articles,  non  est  factum 
was  pleaded,  and  evidence  received  of  the  defendant's  mental 
incajjacity.  This  was  the  decision  of  a  single  judge,  at  nisi 
prius,  and  has  been  overlooked  by  several  writers  who  have 
treated  of  this  subject.  It  is  now,  however,  recognized  as 
sound  law,  and  is  introduced  into  the  modern  books,  (c) 
There  are  other  cases  in  which  the  same  doctrine  has  been 
held ;  and  in  1826,  Littledale,  J.,  said :  "  There  is  no  doubt 
that  a  deed,  bond,  or  other  specialty,  may  be  avoided  by  a 
plea  of  lunacy,  if  at  the  time  it  was  executed  the  contracting 
party  was  non  compos  mentis:''  (d)  The  law  has  been  held  in 
the  same  way,  by  the  court  in  Connecticut ;  (e)  by  the  circuit 
court  of  the  United  States  in  the  district  of  Connecticut,  in 
the  case  of  Owen  v.  Mann ;  (/)  and  by  the  courts  in  New 
York  and  Massachusetts,  (g-) 

If,  however,  a  lunatic  contract  for  necessaries  suitable  for 
his  state  and  degree,  he  will  be  held  to  pay  for  them  ;  and,  in 
an  action  to  recover  pay,  his  lunacy  will  not  avail  as  a  de- 
fence. (A)  The  case  in  which  this  point  was  decided  was  that 
of  an  executed  contract,  and  the  defendant  had  enjoyed  the 
use  of  the  property.  Chief  Justice  Abbott  distinguished  be- 
tween executed  and  executory  contracts  by  such  persons  ;  but 

(a)  Evans  v.  Harrison,  Wilmot,  155.  (A)  2  Strange,  1104. 

(c)  Bac.  Ab.  Obligation,  D.  1,  (Guillim's  ed.)  1  Chit.  PI.  (6th  Amer.  ed.) 
511.     2  Saunders  PI.  &  Ev.  (2d  ed.)  318. 

(d)  7  Dowl.  &  Ryl.  618. 

(e)  Webster  v.  Woodford,  3  Day,  90. 

(/)   September  Term,  1808,  cited  in  a  note  to  Day's  edition  of  Co.  Lit.  247. 

([/)  Rice  V.  Peet,  15  Johns.  503.  Mitchell  v.  Kingman,  5  Pick.  431.  See 
also  1  Bland,  376,  11  Pick.  305,  and  9  Foster,  106. 

(A)  Bagster  v.  Earl  Portsmouth,  7  Dowl.  &  Ryl.  614  and  5  Barn.  &  Cres. 
170.     See  Kendall  v.  May,  10  Allen,  59.     Hallett  v.  Oakes,  1  Cush.  296. 


NON    COMPOTES   MENTIS.  79 

expressed  no  opinion  as  to  the  validity  of  the  latter.  The 
real  ground  of  this  determination  was  that  of  equity  and 
justice.  There  had  been  no  imposition ;  the  defendant  had 
received  and  used  the  plaintiff's  property;  he  was  not  under 
the  legal  custody  of  any  other  person ;  and,  though  he  was 
insane,  and  therefore  could  not  in  strictness  make  a  bind- 
ing agreement,  yet  it  was  right  that  his  property  should  be 
applied  to  his  support.  It  is  said  in  Phillips  on  Lunacy, 
17,  that  "  the  courts  of  law  and  equity  imply  a  contract  by 
one  non  compos  mentis,  to  pay  for  necessaries  supplied  to  him  ; 
but  if  he  is  already  sufficiently  supplied  with  any  goods,  it 
seems  that  he  is  not  liable  for  a  further  supply  of  such  goods, 
although  supplied  without  notice  of  the  previous  supply." 
See  5  Beav.  329.  1  Y.  &  Col.  Ch.  171.  2  CI.  &  Fin.  662, 
663.  4  Barr,  375.  12  Barb.  237.  There  is  a  strong  analogy 
between  the  decisions  in  these  cases,  and  the  law  as  applied 
to  the  agreements  made  by  infants,  who  have  not,  in  most  in- 
stances, a  legal  capacity  to  contract. 

In  Mannin  v.  Ball,  Smith  &  Batty,  183,  an  action  of  eject- 
ment upon  the  title  of  real  estate  conveyed  by  deed  of  a  de- 
ceased grantor  was  tried  on  the  question  whether  the  grantor 
was  of  sound  mind  when  he  executed  the  deed.  The  jury 
were  instructed  that  "  to  constitute  such  unsoundness  of  mind 
as  should  avoid  a  deed  at  law,  the  person  executing  such  deed 
must  be  incapable  of  understanding  and  acting  in  the  ordinary 
affairs  of  life ;  that  it  was  not  necessary  that  he  should  be 
without  a  glimmering  of  reason,  but  that  it  was  sufficient  if 
he  was  incapable  of  understanding  his  own  ordinary  con- 
cerns ;  and  that,  as  one  test  of  such  incapacity,  the  jury  were 
at  liberty  to  consider  whether  he  was  capable  of  understand- 
ing what  he  did  by  executing  the  deed  in  question,  when  its 
general  purport  was  fully  explained  to  him."  The  jury  found 
a  verdict  for  the  plaintiff,  on  the  ground  that  the  grantor  was 
of  unsound  mind.  On  exceptions  taken  to  the  instructions, 
and  argued  before  the  judges  of  the  King's  Bench  in  Ireland, 
Chief  Justice  Bushe,  in  giving  the  opinion  of  the  court,  said 
that  "  incapacity,  at  the  time,  to  understand  the  act  is  the 
criterion  of  unsoundness  of  mind."     Judgment  was  rendered 


80  LAW   OF   CONTRACTS. 

for  the  plaintiff,  which  judgment  was  affirmed  by  the  House 
of  Lords,  1  Dow  &  Clark,  380  and  3  Bligh  N.  S.  1. 

There  are  decisions  that  A.'s  unsoundness  of  mind  will  not 
vacate  his  contract  with  B.  if  B.  did  not  know  of  the  un- 
soundness, and  took  no  advantage  of  A. ;  and,  especially 
where  the  contract  is  executed  in  whole  or  in  part,  (a)  But  this 
is  not  law  in  Massachusetts.     Seaver  v.  Phelps,  11  Pick.  304. 

The  legal  systems  of  every  civilized  community  provide 
some  means  of  protecting  those,  who  are  deficient  in  mental 
power,  from  the  impositions  of  others,  and  from  their  own 
improvidence  and  fatuity.  By  the  Roman  law,  a  tutor  was 
provided,  without  whose  assent  no  act  of  theirs  was  bind- 
ing. In  England,  the  king  is  curator,  and  has  the  legal  cus- 
tody of  idiots  and  lunatics,  and  exercises  his  superintendence 
through  the  Lord  Chancellor,  (b)  In  the  United  States,  a 
guardian  is  appointed,  and  the  statutes  of  the  different  states 
make  different  provisions. 

The  contracts  of  persons  of  weak  understandings,  though 
not  non  compotes  mentis,  are  set  aside  in  chancery,  if  deception 
and  imposition  be  practised  upon  them.  But  this  is  rather  on 
the  ground  of  fraud  than  of  mental  incompetency,  although 
lighter  facts  will  avoid  a  contract  with  such  persons  than  with 
those  of  common  understanding;  that  is,  an  imposition,  for 
which  a  man  of  ordinary  intellect  would  be  entitled  to  no  re- 
dress, will  induce  a  court  of  chancery  to  vacate  an  agreement 
made  with  a  person  of  feeble  mental  powers,  because  the 
latter  may  be  defrauded  by  artifices,  against  which  common 
men  would  guard,  (c) 

By  the  common  law,  a  deed  of  land,  made  by  a  person  non 
compos,  is  voidable  only,  but  not  void  ;  [d)  and,  therefore,  the 

(a)  Niell  v.  Morley,  9  Ves.478.  Dane  v.  Kirkwall,  8  Car.  &  P.  6  79.  Mol- 
ton  V.  Camroux,  2  Exch.  487  and  4  Exch.  17.  Beavan  v.  McDonnell,  9  Exch. 
309.  Carr  v.  Holliday,  5  Ired.  Eq.  167.  Beals  v.  See,  10  Barr,  56.  2  Kent 
Com.  (11th  ed.)  583.  Smith  on  Contracts,  (4th  Amer.  ed.)  328-335.  Stock 
on  Non  Compotes,  25. 

(6)  See  Bac.  Ab.  Idiots  and  Lunatics.     1  Bl.  Com.  315. 

(c)  3  Wooddeson,  453.     See  Blachford  v.  Christian,  1  Knapp,  73. 

(rf)  2  Bl.  Com.  245.  Breckenridge  v.  Ormsby,  1  J.  J.  Marsh.  245.  Wait 
V.  Maxwell,  5  Pick.  217.  Allis  v.  Billings,  6  Met.  415.  Shelford  on  Luna- 
tics, 255. 


DRUNKARDS.  81 

deed  of  such  a  person  conveys  a  seizin.  In  some  states  of 
the  Union,  the  deeds  of  persons  Twn  compotes  mentis^  made 
after  they  are  put  under  guardianship,  are  declared  by  statute 
to  be  utterly  void. 

As  to  real  actions,  it  seems  that  a  grantor  cannot  even  yet, 
in  England,  maintain  a  suit  to  recover  land  conveyed  by  him 
while  non  compos  mentis,  (a)  Aliter  in  the  United  States. 
Bensell  v.  Chancellor,  5  Whart.  371.  Allis  v.  Billings,  6  Met. 
415.  Rogers  v.  Walker,  6  Barr,  371.  Gibson  v.  Soper,  6 
Gray,  279. 

Contracts  made  during  a  lucid  interval  are  valid,  {b) 

3.  Drunkards. 

It  was  formerly  held  that  an  agreement,  made  by  a  party 
while  absolutely  drunk,  should  bind  him  in  law ;  and  that  it 
should  not  be  set  aside  in  chancery,  unless  he  were  made 
drunk  by  the  other  party,  or  by  his  contrivance.  If  a  positive 
fraud  were  practised  on  the  party  while  drunk,  the  agreement 
would  be  vacated  on  that  ground,  (c)  But,  on  the  principles 
of  natural  law,  as  expounded  by  the  most  approved  writers, 
and  on  the  principles  of  common  law,  as  usually  applied,  such 
a  degree  of  intoxication  as  deprives  a  party  of  his  reason 
should  avoid  any  engagement  into  which  he  may  enter  during 
his  mental  incompetency.  "  Yet  the  merriment  of  a  cheerful 
cup,"  says  Puffendorf,  "which  rather  revives  the  spirits  than 
stupefies  the  reason,  is  no  hindrance  to  the  contracting  of  just 
obligations."  {d) 

Lord  EUenborough,  at  nisi  prius,  held  in  two  cases,  that 
an  agreement  signed  by  a  party  while  in  a  state  of  complete 

(a)  See  this  point  discussed,  1  Powell  on  Con.  9,  29.  Stearns  on  Keal 
Actions,  184,  note. 

(6)  1  Dow,  177.     4  Conn.  203.     13  Wis.  425. 

(c)  1  Powell  on  Con.  29.  Newland  on  Con.  365.  Bui.  N.  P.  172. 
1  Saunders  PL  &  Ev.  (2d  ed.)  976. 

{d)  Book  iii.  chap.  6,  §  4.     See  also  Vitriarii  Institutiones,  Hb.  ii.  chap.  11, 
§§  7,  8.     Gisborne's  Mor.  Philos.  (2d  ed.)  176, 177.     Wade  v.  Colvert,  2  Rep. 
Const.  Ct.  (S.  C.)  27.     Burroughs  v.  Richman,  1  Green  (N.J.)  233.     Arnold 
V.  Hickman,  6  Munf.  15. 
6 


82  LAW   OF    CONTRACTS. 

intoxication,  was  a  nullity,  as  he  "  had  no  agreeing  mind  ;"(a) 
and  such  is  now  considered  to  be  the  English  law  by  the 
latest  writers.  Bayley,  J.,  strongly  intimates  the  same  doc- 
trine, (b)  The  American  cases  conform  to  this  view  of  the 
matter ;  (c)  and  this  is  the  present  doctrine  also  of  the  courts 
of  chancery,  (d)  Such  also  is  the  law  of  Scotland,  (e)  and 
of  France.  (/) 

If  a  person,  while  in  a  state  of  total  drunkenness,  makes 
an  agreement  for  the  purchase  of  goods  and  takes  them,  and 
afterwards,  when  his  reason  returns,  uses  them  as  his  own, 
there  can  be  no  doubt  but  that  he  may  be  compelled  to  pay 
for  them.  His  subsequent  conduct  would  be  an  adoption  of 
the  original  agreement,  or  an  implied  contract  would  be 
raised  by  the  law  from  the  time  of  his  thus  appropriating  the 
goods,  (g-) 

As  drunkenness  is  an  intermittent  disability,  it  will  rarely 
happen  that  necessaries  furnished  to  a  man  while  drunk  will 
be  expended  before  he  becomes  sober.  But  if  such  an  in- 
stance should  occur,  the  same  principle  which  was  applied  in 
the  case  of  Earl  Portsmouth  (a  lunatic),  would  probably  be 
adopted  by  the  courts  ;  and  the  party  held  to  pay,  on  the 
ground  of  equity  and  justice,  for  necessary  supplies  to  him- 
self and  family. 

4.  Married  Women. 

By  the  common  law,  a  married  woman  has,  in  general,  no 
legal  capacity  to  make  an  obligatory  contract.  In  legal  con- 
templation, she  has,  for  most  purposes,  no  separate  existence 

(a)  Pitt  t'.  Smith,  3  Campb.  33.  Fenton  v.  Holloway,  1  Stark.  R.  126. 
Gore  V.  Gibson,  13  Mees.  &  Welsb.  623.     Richardson  v.  Strong,  13  Ired.  106. 

(6)  7  Dowl.  &  Ryl.  614. 

(c)  King's  Ex'ors  v.  Bryant's  Ex'ors,  2  Haywood,  394.  Barrett  v. 
Buxton,  2  Aik.  167.  2  Rep.  Const.  Ct.  (S.  C.)  27.  2  Kent  Com.  (11th 
ed.)  584,  585. 

{d)  Cooke  V.  Clayworth,  18  Vesey,  15.  3  Chitty  Com.  and  Manuf.  Law, 
55.     1  Wash.  164.     1  Hen.  &  Munf.  70.     2  Paige,  31. 

(e)  2  Ersk.  Inst.  (ed.  of  1828,)  593. 

(/)  1  Poth.  on  Obi.  (1st  Amer.  ed.)  26. 

(g)  See  1  Bibb,  168.     2  Har.  &  Johns.  423.     6  Muuf.  15.     1  Bailey,  343. 


MARRIED   WOMEN.  83 

from  her  husband.  They  are  one  person  only,  and  she  has  no 
property  with  which  she  could  be  compelled  to  satisfy  her  en- 
gagements, if  she  were  competent  to  contract  them  ;  as,  upon 
the  marriage,  her  husband  becomes  the  proprietor  of  all  her 
effects.  This  is  the  general  principle  ;  it,  however,  is  subject 
to  several  exceptions,  some  of  the  more  prominent  of  which 
will  be  mentioned,  {a) 

The  exceptions,  or  the  instances  in  which  a  married  woman 
is  regarded  as  sole,  capable  of  making  contracts,  and  liable 
for  the  breach  of  them,  have  been  introduced  for  her  benefit, 
no  less  than  for  the  benefit  of  those  who  contract  with  her ;  to 
save  her  from  want  and  suffering,  as  well  as  to  provide  legal 
security  for  those  who  supply  her  with  the  means  of  subsist- 
ence and  comfort. 

1.  Where  the  legal  existence  of  the  husband  is  extinguished 
or  suspended,  where  he  is  civtliter  mortuus,  as  where  he  is 
transported  for  life  under  a  judicial  sentence,  upon  a  convic- 
tion of  crime,  his  wife  may  make  contracts,  for  the  perform- 
ance of  which  she  will  be  personally  responsible,  and  which 
she  may  enforce  as  a  feme  sole,  if  they  are  violated  by  the 
other  contracting  party. 

In  a  note  to  11  East,  304,  and  Co.  Lit.  133,  note,  (209,)  Mr. 
Day,  the  American  editor,  says,  that  imprisonment  for  life,  in 
this  country,  would  be  attended  with  the  same  effect  as  per- 
petual banishment  in  England.  Unless,  however,  there  be 
some  statute  provision,  (as,  in  New  York,  where  persons  sen- 
tenced to  imprisonment  for  life  in  the  state  prison  are  declared 
to  be  "civilly  dead  to  all  intents  and  purposes,")  it  is  not 
known  that  such  imprisonment,  in  the  penitentiaries  or  other 
prisons  of  the  different  states,  would  enable  the  prisoner's  wife 
to  contract  and  render  herself  liable  as  a  feme  sole.  Such 
effect  has  not  yet  been  given  by  the  courts  to  imprisonment 
for  life,  (b) 

In  England,  the  exception  is  confined  to  banishment  from 
the  realm,  which  is  a  commutation  of  punishment  that  is 
made  only  in  capital  convictions  which  induce  attainder ;  an 
effect  not  incident  to  such  convictions  in  the  United  States. 

(a)  The  law  as  to  a  wife's  separate  property  is  not  here  considered. 
(6)  See  2  Kent  Com.  (11th  ed.)  147. 


8-i  LAW   OP   CONTRACTS. 

In  North  Carolina  a  husband,  in  1777,  was  required  to  take 
the  oath  of  allegiance  to  the  state,  and  having  refused  so  to 
do,  "  he  was  compelled  to  leave  the  state  under  the  penalty, 
by  law  established,  of  incurring  the  crime  of  high  treason  if 
he  returned."  Held,  that  his  wife,  who  was  left  in  the  state, 
was  to  all  purposes  a  feme  sole,  and  might  sue  and  be  sued, 
and  acquire  and  transfer  property.  Troughton  v.  Hill,  2 
Haywood,  406.  And  in  Connecticut,  where  a  citizen  of  that 
state  left  it,  in  the  time  of  the  revolutionary  war,  and  joined 
its  enemies,  it  was  held  that  his  wife,  who  remained  in  the 
state,  had  the  rights  of  a  feme  sole  while  he  was  absent. 
Cornwall  v.  Hoyt,  7  Conn.  420.  See  also  fright  v.  Wright, 
2  Desaus.  244. 

2.  If  the  husband  entered  into  religion,  the  wife  might  for- 
merly be  treated  as  a  feme  sole.  1  Bl.  Com.  132.  Co.  Lit. 
132.     Clancy  on  Husb.  &  Wife,  210. 

3.  Another  exception,  in  former  times,  was  the  voluntary 
abjuration  [a)  of  the   realm    and  departure  from   it   by   the 

(a)  There  is,  iu  England,  no  such  thing  as  abjuration  of  the  realm,  in  any 
legal  sense,  or  with  any  legal  effect,  since  the  statute  of  21  James  I.  c.  28. 
Abjuration  was  a  sworn  banishment,  or  an  oath  taken  to  forsake  the  realm 
forever.  It  was  a  commutation  of  punishment  for  a  crime,  and  induced  civil 
death.  The  party  who  had  committed  a  felony  might  flee  to  a  church  or 
churchyard,  before  he  was. apprehended,  and  could  not  be  taken  thence  to  be 
tried  for  his  offence.  But  upon  a  confession  of  his  offence,  before  the  proper 
officer,  he  was  admitted  to  his  oath  to  abjure  or  forsake  the  realm  within  forty 
days.  As  this  state  of  things  was  found  often  to  operate  only  as  a  pei-petual 
confinement  to  some  sanctuary,  the  statute  above  mentioned  abolished  the 
privilege  of  sanctuary,  and  this  abjuration  thereupon  ceased.  That  there 
ever  was  anything  of  this  sort  in  any  part  of  the  United  States,  nobody  will 
pretend.  Nor  will  any  lawyer  suppose  that  the  courts  in  England  would  re- 
gard the  wife  of  an  emigrant,  who  is  naturalized  in  this  country,  and  has 
abjured  his  allegiance  to  the  British  throne,  as  a  feme  sole,  for  any  purpose. 
The  whole  course  of  authorities  shows  the  contrary.  See  Staunf.  P.  C.  Book 
ii.  c.  40.     2  Inst.  629.     4  Bl.  Com.  c.  26. 

In  the  Mirror,  c.  i.  §  13,  is  this  passage  :  "  In  the  right  of  offenders,  who 
by  mischance  fall  into  an  offence  mortal  out  of  sanctuary,  and  for  true  re- 
pentance run  to  monasteries,  and  commonly  confess  themselves  sorrowful,  and 
repent ;  such  offenders,  being  of  good  fame,  if  they  require  tuition  of  the 
churcli.  King  Henry  II.,  at  Clarendon,  granted  unto  them,  that  they  should 
be  defended  by  the  church  for  the  space  of  forty  days ;  and  ordained  that  the 


MARRIED   WOMEN.  '  85 

husband.  In  the  three  instances  above  mentioned,  the  hus- 
band is  regarded  as  civiliter  mortuus. 

Although  it  is  not  known  that  the  courts  of  our  country 
have  now  any  authority  to  pass  a  sentence  of  banishment  or 
transportation,  as  we  have  no  extra-territorial  provinces,  yet 
punishment  of  death  and  other  lighter  punishments  are  some- 
times suspended  or  commuted,  on  condition  that  the  convict 
leave  the  country,  either  for  a  limited  time  or  forever.  In 
such  instances,  if  the  husband  leave  the  United  States,  the 
principle  which  is  applied  in  cases  of  peremptory  banishment 
in  England  might  perhaps  be  applicable  here. 

If,  however,  the  punishment  be  suspended  or  commuted,  on 
condition  that  the  convict  merely  leave  the  state  where  the 

towns  should  defend  such  flyers  for  the  whole  forty  days,  and  send  them  to  the 
coroner,  at  the  coroner's  view.  It  is  in  the  election  of  the  offender  to  yield 
to  the  law,  or  to  acknowledge  his  offence  to  the  coroners,  and  to  the  people, 
and  to  waive  the  law  ;  and  if  he  yield  himself  to  be  tried  by  law,  he  is  to  be 
sent  to  jail,  and  to  wait  for  either  acquittal  or  condemnation.  And  if  he  con- 
fess a  mortal  offence,  and  desire  to  depart  the  realm,  without  desiring  the 
tuition  of  the  church,  he  is  to  go  from  the  end  of  the  sanctuary  ungirt,  in  pure 
sackcloth,  and  there  swear  that  he  will  keep  the  straight  way  to  such  a  port, 
or  such  a  passage,  which  he  hath  chosen,  and  will  stay  in  no  parts  two  nights 
toffether,  until  that  for  this  mortal  offence,  which  he  hath  confessed  in  the 
hearino-  of  the  people,  he  hath  avoided  the  realm,  never  to  return,  during  the 
king's  life,  without  leave ;  so  God  him  help  and  the  holy  evangelists ;  and 
afterwards  let  him  take  the  sign  of  the  cross  and  carry  the  same  ;  and  the 
same  is  as  much  as  if  he  were  in  the  protection  of  the  church."  Britton  gives 
substantially  the  same  description  of  this  antiquated  proceeding.  Kelham's 
Britton,  c.  16.  By  statute  35  Eliz.  c.  2,  Popish  recusants  were  required  upon 
their  corporal  oath  to  abjure  the  realm  of  England,  and  all  other  the  Queen's 
majesty's  dominions  forever,  and  thereupon  to  depart,  at  such  haven  and  port, 
and  at  such  time,  as  should  be  in  that  behalf  assigned  and  appointed  by  the 
officers  before  whom  the  oath  was  taken.  As  nothing  like  this  ever  existed 
in  this  country,  of  course  the  incidents  and  effects  of  abjuration,  whether 
upon  the  offender  or  his  connexions,  have  no  place  in  our  laws.  Hence  it  is 
incorrectly  said,  as  it  sometimes  has  been,  that  when  a  husband  deserts  his 
wife  and  removes  from  the  country  or  state  of  his  residence,  not  intending  to 
return,  this  amounts  to  an  abj  uration  oC  his  former  state  or  country;  although  it 
mav  have  the  same  effect  which  abjuration  formerly  had,  on  his  wife's  rights 
and  liabilities. 

This  note  is  part  of  an  article  first  published  in  the  U.  S.  Law  Intelligencer, 
Vol.1,  pp.  166,167. 


86  LAW  OF  CONTRACTS. 

offence  was  committed,  and  he  remain  in  the  United  States, 
or  vohintarily  leave  them,  his  wife  would  probably  not  be  con- 
sidered as  a  feme  sole  for  the  purpose  of  contracting. 

4.  Temporary  transportation  or  banishment,  though  not 
civil  death  of  the  husband,  yet  entitles  the  wife  to  sue  as  a 
feme  sole  during  his  absence,  (a)  On  the  husband's  return 
from  transportation,  his  marital  rights  revive,  (b) 

5.  By  the  custom  of  London,  a  feme  covert  trader,  if  her 
husband  does  not  intermeddle  in  the  trading,  is  regarded  as  a 
feme  sole.  She  may  sue  and  be  sued,  and  though,  for  the 
sake  of  conformity,  her  husband  must  join  and  be  joined 
nominally  in  suits  by  and  against  her,  yet  the  judgment,  when 
recovered,  does  not  affect  him.  If  the  judgment  is  against 
her,  he  is  not  liable  to  respond  to  it.  (c) 

6.  Another  exception  to  the  rule  of  the  common  law  on 
this  subject  is  made  in  this  country,  in  cases  of  the  husband's 
desertion  of  his  wife.  In  Massachusetts  this  exception  is  re- 
stricted to  cases  of  absolute  and  complete  desertion  by  the 
husband's  continued  absence  from  the  state,  and  a  voluntary 
abandonment  of  his  wife,  with  intent  to  renounce,  de  facto, 
the  marital  relation,  and  leave  her  to  act  as  a  feme  sole. 
Gregory  v.  Pierce,  4  Met.  478.  See  also  Robinson  v.  Rey- 
nolds, 1  Aik.  174.  Ayer  v.  Warren,  47  Maine,  230,  and 
Ames  V.  Chew,  5  Met.  320.  A  less  restricted  kind  of  desertion 
seems  to  have  been  held  sufficient  in  Rhea  v.  Rhenner,  1  Pe- 
ters, 105.     That,  however,  was  a  case  in  equity. 

An  English  wife,  who  was  deserted  by  her  husband  in  Eng- 
land for  several  years  without  any  means  of  support  left  by 
him,  and  without  any  correspondence  with  him,  came  to  this 
country  and  maintained  herself  here  for  five  years,  as  a  single 
woman.     It  was  decided  that  she  might  maintain  an  action 

(r/)  LofTt,  142.  Co.  Lit.  133,  a.  note  209.  2  Bright  on  Husb.  &  Wifo,  70. 
Clancy  on  Husb.  &  Wife,  63. 

(b)   Spooner  v.  Brewster,  2  Car.  &  P.  35.     Carrol  v.  Blencow,  4  Esp.  R.  27. 

(r)  Langharai;.  Bewett,  Cro.  Car.  68  and  Hetlcy,  9.  Anon.  10  Mod.  6. 
Caudell  v.  Shaw,  4  T.  11.  361.  Beard  v.  Webb,  2  Bos.  &  Pul.  93.  See  the 
law  of  Pennsylvania,  on  this  subject,  6  Watts  &  Serg.  348,  2  Serg.  &  R. 
189  ;  of  South  Carolina,  2  Bay,  162,  2  Nott  &  McCord,  242,  4  McCord, 
413  ;  of  Rhode  Island,  5  Allen,  208. 


MAERIED   WOMEN.  87 

as  a  feme  sole.  Gregory  v.  Paul,  15  Mass.  31.  See  also 
McArthur  v.  Bloom,  2  Duer,  151.  The  same  was  decided  in 
the  case  of  the  wife  of  a  citizen  of  another  state,  after  she  had 
been  driven  from  his  house  by  his  cruelty,  without  any  means 
of  support,  and  had  resided  in  this  state  many  years,  and  sup- 
ported herself  as  a  single  woman.  Abbot  v.  Bayley,  6  Pick. 
89.  The  same  decisions  would  undoubtedly  be  now  made  in 
case  of  the  complete  desertion  of  a  wife  by  a  native  citizen 
of  the  state.  This  is  a  necessary  inference  from  the  case  of 
Gregory  v.  Pierce,  before  cited. 

It  is  not  certain  that,  by  the  present  law  of  England,  a  hus- 
band's desertion  of  his  wife,  or  his  voluntary  absence  from  her, 
affects  her  rights  or  liabilities.  During  the  last  seventy  years 
the  courts  have  been  disposed  to  narrow  the  grounds  on  which 
the  rights  and  liabilities  of  femes  sole  were  formerly  transferred 
to  married  women. 

Until  recently  it  was  supposed  that  the  wife  of  an  alien 
enemy,  who  could  not  come  into  England,  was  subject  to  the 
liabilities  and  entitled  to  the  rights  of  a  feme  sole.  1  Ld. 
Raym.  147  and  Comb.  402.  2  Bright  on  Husb.  &  Wife,  74. 
Broom  on  Parties,  76.  But  the  contrary  was  decided  in 
1856,  in  the  case  of  DeWahl  v.  Braune,  1  Hurlst.  &  Norm. 
178. 

It  was  held  by  Lord  Kenyon,  in  2  Esp.  R.  554,  587,  that 
the  wife  of  a  foreigner,  who  left  her  in  England,  was  liable 
as  a  feme  sole.  This  was  denied  and  the  contrary  adjudged, 
in  Kay  v.  Duchess  de  Pienne,  3  Campb.  123.  In  that  case. 
Lord  Ellenborough  is  reported  to  have  expressed  an  opinion 
that  the  wife  of  an  alien  who  had  never  been  in  England 
might  be  sued  as  a  feme  sole.  But  Baron  Parke,  in  2  JNIees. 
&  Welsh.  64, 65,  said,  "  There  must  have  been  some  misappre- 
hension of  what  Lord  Ellenborough  said  in  that  case,  or  his 
Lordship  must  have  been  in  error ;  that  the  law  does  not 
make "  a  wife  liable  as  a  feme  sole  "  merely  because  her 
husband  is  an  alien  and  continually  abroad."  And  an  Eng- 
lishman's absence  from  his  wife,  and  his  residence  out  of 
England,  do  not  render  her  liable  as  a  feme  sole.  Marsh 
V.    Hutchinson,   2   Bos.   &    Pul.   226.      Farrer   v.    Countess 


88  LAW   OP   CONTRACTS. 

Granard,  1  New  Kep.  80.  Boggett  v.  Frier,  11  East,  301. 
Williamson  v.  Dawes,  9  Bing.  292  and  2  Moore  &  Scott,  352. 
2  Roper  on  Husb.  &  Wife,  125,  126.  Bell  on  Husb.  &  Wife, 
35.  2  Leigh's  Nisi  Prius,  1101-1104.  See  also  Stretton  v. 
Busnash,  1  Bing.  N.  R.  139  and  Barden  v.  Keverberg,  2  Mees. 
&  Welsh.  61.  The  English  law  is  followed  in  South  Car- 
olina.    Boyce  v.  Owens,  1  Hill,  (S.  C.)  8.  (a) 

A  married  woman,  sued  for  goods  sold  to  her,  is  not  estop- 
ped to  set  up  the  defence  of  coverture  by  reason  of  her  having 
previously  to  the  sale  executed  deeds  and  sued  out  writs  and 
carried  on  actions,  denominating  herself  as  a  widow.  Daven- 
port V.  Nelson,  4  Campb.  26.  And  where  such  woman  ex- 
ecuted a  warranty  deed  of  her  real  estate  by  her  maiden 
name,  dated  before  the  time  of  her  marriage,  for  a  fraudulent 
purpose,  and  without  disclosing  her  marriage,  it  was  decided 
that  she  did  not  estop  herself  and  her  heirs  to  set  up  her  title 
to  the  land,  as  against  her  grantee,  or  against  a  purchaser 
from  him  without  notice.  Lowell  v.  Daniels,  2  Gray,  161. 
See  also  Concord  Bank  v.  Bellis,  10  Cush.  276. 

It  is  the  law  of  most  of  the  states  of  the  Union,  that  a  mar- 
ried woman  may  convey  her  real  estate  and  release  dower  in 
the  estate  of  her  husband,  by  joining  in  a  deed  thereof  with 
him.  1  Washburn  on  Real  Property,  (1st  ed.)  284,  (2d  ed.) 
278,  279. 

7.  If  husband  and  wife  are  divorced  a  mensa  et  thoro, 
though  the  marriage  is  not  dissolved,  and  they  may  lawfully 
live  together  again  as  soon  as  they  agree  so  to  do,  yet,  while 
they  are  separated,  the  wife,  for  some  purposes,  is  regarded  as 
a  feme  sole.  She  may  sue  her  husband  for  alimony  decreed 
to  her  by  the  court,  upon  the  divorce  ;  and,  of  course,  may 
maintain  an  action  against  an  officer,  in  her  own  name  only, 
for  any  default  in  executing  process  to  enforce  the  allowance 

(a)  By  an  English  statute,  (20  and  21  Victoria,  c.  85,)  it  is  pi'ovided  that  a 
wife,  deserted  by  her  husband,  may  apply  to  a  police  magistrate  for  an  order 
to  protect  any  money  or  property  that  she  may  acquire  by  her  own  industry, 
&c.,  after  being  deserted  ;  and  that,  after  obtaining  such  order,  such  earnings 
and  property  shall  belong  to  her  as  if  she  were  a  feme  sole.  See  an  action 
by  a  wife  under  this  statute.     Thomas  v.  Head,  2  Fost.  &  Finl.  88. 


MARRIED   WOMEN.  89 

of  alimony,  (a)  In  a  case  reported  by  Moore,  (b)  it  is  said, 
the  court  seemed  to  suppose  she  may  sue  alone  on  a  cause  of 
action  against  a  third  person.  And,  in  the  ecclesiastical 
courts,  which  proceed  according  to  the  rules  of  the  civil  law, 
by  which  husband  and  wife  are  not  regarded  as  one  person, 
suits  are  constantly  brought  by  the  wife  alone,  after  a  divorce 
a  mensa  et  thoro,  for  personal  injuries,  (c) 

The  court  in  Massachusetts  has  decided  that  after  such 
partial  divorce,  the  wife  can  contract  debts  and  sue  and  be 
sued  as  a  feme  sole,  (d)  The  contrary,  however,  has  been 
decided  by  the  court  of  King's  Bench,  (e) 

There  were  several  decisions  in  the  time  of  Lord  Mansfield, 
that  after  a  voluntary  separation  of  husband  and  wife  under 
articles  of  agreement,  by  which  a  separate  maintenance  was 
secured  to  the  wife,  she  might  contract  debts  and  be  sued  as 
a  feme  sole.  Mr.  Powell  (/)  strongly  contested  this  doctrine ; 
and  in  the  case  of  Marshall  v.  Rutton,  (g-)  which  was  argued 
before  all  the  judges  of  England,  it  was  unanimously  over- 
ruled. But  those  overruled  cases  have  been  defended  in  Reeve 
Dom.  Rel.  99  Sf  seq.  and  1  Dane  Ab.  339,  361.  See  also 
Ayer  v.  Warren,  47  Maine,  224  ^  seq. 

If  a  husband  be  absent  seven  years  unheard  from,  the  wife 
may  be  treated  as  a  feme  sole,  and  may  contract  and  be  sued 
as  such,  although  her  husband  may  in  fact  be  alive  and  within 
the  country.  The  legal  presumption  in  that  case  is  that  he 
is  dead,  {h) 

(a)  Howard  v.  Howard,  15  Mass.  Kep.  196.  Prather  v.  Clarke,  1  Const. 
Eep.  (S.  C.)  453.     Contra  in  Wisconsin.     Barber  v.  Barber,  1  Chand.  280. 

(h)  Stephens  v.  Tot,  Mo.  665.  But  in  Croke's  report  of  this  case,  no  such 
intimation  of  the  court  is  given.     Cro.  Eliz.  908. 

(c)  Motteram  v.  Motteram,  3  Bulst.  264.  Chamberlaine  v.  Hewson,  5  Mod. 
71  and  1  Ld.  Kaym.  73.     2  Dane  Ab.  307.     Reeve  Dom.  Rel.  205. 

{d)  Dean  v.  Richmond,  5  Pick.  461.     Pierce  v.  Burnham,  4  Met.  303. 

(e)  Lewis  v.  Lee,  3  Barn.  &  Cres.  291  and  5  Dowl.  &  Ryl.  98.  Faithorne 
V.  Blaquire,  6  M.  &  S.  73. 

(/)   1  Powell  on  Con.  77  §•  seq. 

(g)  8  T.  R.  545. 

(ji)  Doe  V.  Jesson,  6  East,  85.  Doe  v.  Deakin,  4  B.  &  Aid.  434.  King 
V.  Paddock,  18  Johns.  141.  1  Greenl.  Ev.  §  41.  Roscoe  on  Ev.  (10th 
ed.)  34.     Loring  v.  Steineman,  1  Met.  211.    See  12  Allen,  133. 


90  LAW  OF   CONTRACTS. 

Subject  to  these  exceptions,  and  to  such  others  as  may  be 
made  by  various  local  statutes,  husband  and  wife  are  regarded 
in  law  as  one  person,  and  the  wife's  separate  existence,  so  far  at 
least  as  the  power  of  making  contracts  is  concerned,  is  merged 
and  discontinued.  She  can  acquire  no  property,  and  is  there- 
fore liable  to  pay  no  demand.  Any  promise  made  by  her  is 
void,  and  so  is  any  deed  executed  by  her,  except  in  conjunction 
with  her  husband,  (a)  If  a  third  person  give  or  bequeath  any- 
thing to  her,  it  becomes  the  husband's  ;  and  any  promise  made 
to  the  wife  can  be  enforced  only  by  the  husband,  and  for  his 
benefit. 

A  gift  by  a  husband  to  his  wife,  though  a  nullity  in  law, 
will  sometimes  be  recognized  and  enforced  in  equity,  if  the 
rights  of  his  creditors  are  not  thereby  prejudiced,  (b) 

A  widow  cannot  recover  of  her  husband's  executors  or  ad- 
ministrators a  promissory  note  given  to  her  by  him  during 
coverture,  though  it  was  given  for  money  which  was  hers  be- 
fore marriage.  Sweat  v.  Hall,  8  Verm.  187.  Jackson  i).  Parks, 
10  Cush.  550.     And  see  12  Allen,  104. 

But  at  law,  in  Massachusetts,  where  the  husband,  on  the 
sale  of  his  wife's  real  estate,  took  from  the  purchaser  a  note 
and  mortgage  to  himself  and  wife  jointly,  and  died  without 
collecting  the  note  or  bringing  an  action  to  foreclose  the  mort- 
gage, it  was  decided  that  they  survived  to  the  wife.  Draper 
V.  Jackson,  16  Mass.  480,  486.  Jackson,  J.,  there  said  that  the 
husband,  by  taking  security  in  this  form,  is  understood  to  as- 
sent and  intend  that  the  wife  shall  have  some  peculiar  benefit 
from  it;  otherwise  he  would  have  taken  it  in  his  own  name 
alone ;  that  he  might  have  afterwards  changed  his  mind,  re- 
leased the  demand,  or  brought  an  action  in  his  own  name, 
and  upon  recovering  the  money  might  have  retained  it  to  his 
own  use.  But  as  he  did  not  reduce  it  to  possession,  he  was 
considered   as  assenting  that  it  should  continue  to  be  the 

(a)  See  Colcord  v.  Swan,  7  Mass.  291.  Porter  v.  Bradley,  7  R.  I.  538.  2 
Kent  Com.  (11th  ed.)  1G3. 

(/>)  2  Story  on  Fa[.  §  1372.  2  Kent  Com.  (Uth  ed.)  154.  TuUis  v.  Frid- 
ley,  9  Min.  79.  Liles  v.  Fleming,  1  Dev.  Eq.  Rep.  187.  1  Bright  on  Husb. 
&  Wife,  33.     Ward  v.  Crotty,  4  Met.  (Ky.)  59. 


MARRIED    WOMEN.  91 

property  of  the  wife.  See  also  9  Gray,  66,  70.  So  after  the 
husband's  death,  his  wife  was  held  entitled  to  the  full  value 
of  shares  which  she  owned  before  marriage,  in  a  bank  whose 
charter  afterwards  expired  ;  the  husband  having,  as  authorized 
by  law,  subscribed  half  the  number  of  her  shares  in  a  new 
bank,  in  her  name,  and  having  refused  to  receive  the  balance 
of  her  old  shares  in  money,  saying  that  it  was  not  his,  but  his 
wife's.  Stanwood  v.  Stanwood,  17  Mass.  57.  The  like  de- 
cision was  made  where  the  wife  lent  the  interest  of  money 
accruing  on  a  promissory  note  due  to  her  before  marriage,  and 
took  the  borrower's  note  therefor,  payable  to  herself,  according 
to  the  wishes  of  her  husband,  who  often  declared  that  the 
money,  as  well  as  the  interest  thereon,  was  her  separate  prop- 
erty, and  that  he  did  not  claim  or  receive  any  part  of  it  to  his 
own  use.  Phelps  v.  Phelps,  20  Pick.  556.  In  Adams  v. 
Brackett,  5  Met.  280,  the  husband  bought  shares  in  a  bank, 
saying  that  they  were  his  wife's,  and  a  certificate  was  issued 
to  her  as  owner,  and  he  never  treated  them  as  his,  but  always 
as  hers ;  and  in  Fisk  v.  Cushman,  6  Cush.  20,  the  husband  de- 
posited money  in  a  savings  bank  in  the  name  and  to  the  credit 
of  his  wife,  saying  that  the  money  was  hers,  and  delivering 
the  deposit  book  to  her,  and  never  withdrawing  or  transferring 
the  deposit,  but  keeping  a  separate  one,  in  the  same  bank,  in 
his  own  name.  In  both  these  cases,  the  gift  was  supported, 
after  the  husband's  death,  his  intention  to  make  a  gift  being 
manifest,  and  the  act  of  giving  being  complete.  In  all  the 
above  cases,  and  in  Ames  v.  Chew,  5  Met.  320,  it  was  dis- 
tinctly stated  that  the  gifts  were  valid  as  against  the  hus- 
band's heir  and  legatees,  though  not  against  his  creditors. 

Some  of  the  inconveniences  and  hardships  of  the  common 
law,  as  they  affect  married  women,  are  removed  or  mitigated 
by  a  court  of  chancery  ;  but,  of  this  branch  of  the  subject  it 
is  not  purposed  to  treat. 

Great  changes,  which  cannot  be  here  set  forth,  have  been 
made  by  state  legislatures  within  a  few  years,  respecting  the 
legal  rights  and  powers  of  married  women,  (a) 

(a)  See  a  collection  of  the  statutes  of  thirty  states  of  the  Union  on  this 
subject,  in  1  Parsons  on  Con.  (3d  ed.)  306  &,•  seq.,  (5th  ed.)  371  ^^  seq. 


92  LAW   OP   CONTRACTS. 


5.   Outlaws  and  Persons  Attainted. 

The  process  by  which,  according  to  the  common  law,  a  per- 
son is  outlawed  in  a  criminal  prosecution,  or  civil  suit,  may  be 
found  described  in  the  books  cited  in  the  margin,  [a) 

The  incidents  of  outlawry,  so  far  as  the  outlaw's  power  of 
making  contracts  is  in  question,  are,  that  he  cannot,  while  the 
judgment  of  outlawry  remains  in  force,  maintain  any  suit  in 
his  own  right,  so  that  he  is  in  effect  disabled  to  contract  for 
his  own  benefit.  A  bond,  note,  or  other  promise,  given  to 
him,  is  of  no  present  value,  for  he  cannot  enforce  the  collec- 
tion or  performance.  The  other  party  may  plead  the  plaintiff's 
disability,  and  deprive  him  of  all  remedy ;  which  shows  that 
there  is  no  present  legal  obligation  or  right  resulting  from  the 
contract.  He  cannot  hold  and  enjoy  any  property  that  is  given 
or  devised  to  him  ;  it  is  forfeited  to  the  king,  in  England,  and 
was  forfeited  to  the  commonwealth  here,  {b)  Outlaws,  how- 
ever, may  be  sued  on  their  own  contracts,  and  for  other  causes 
of  action.  "  Let  them  be  answerable  to  all,  and  none  to 
them,"  is  the  language  of  the  common  law.  (c)  They  may 
bring  actions  en  autre  droit,  as  executors,  administrators,  &c., 
because  the  persons  whom  they  represent  have  the  privilege 
of  law,  and  outlawry  is  no  objection  to  their  representation,  [d) 

Attainder  includes  in  its  meaning  all  the  disabilities  that 

(a)  Bac.  Ab.  Outlawry.  4  Bl.  Com.  c.  24.  3  ib.  c.  19.  Appx.  No.  iii. 
Syst.  PI.  331  Sf  seq.  1  Chit.  Crim.  Law,  347  fy  seq.  The  process  of  outlawry 
was  abolished  in  Massachusetts,  in  June,  1831.  It  was  obsolete  long  before. 
Yet,  until  that  time,  a  statute  was  in  force,  prescribing  the  proceedings  by 
which  persons  charged  with  criminal  offences  before  the  supreme  court,  by 
indictment  or  presentment  of  a  grand  jury,  and  who  absconded,  &c.,  might 
be  pursued  to  outlawry,  and  declaring  the  disabilities  thereby  incurred  by  the 
offender.  Statute  of  1782,  c.  19.  The  only  case  in  which  a  person  could  be 
pursued  to  outlawry  in  a  civil  proceeding  was  that  of  a  collector  of  taxes, 
who  should  "  abscond  or  secrete  himself  for  the  space  of  one  month,  having 
assessments  in  his  hands  unsettled."  Statute  of  1785,  c.  46,  §  15.  The  in- 
cidents of  outlawry,  in  this  case,  were  not  mentioned  in  the  statute.  Doubt- 
less they  were  those  of  the  common  law. 

(b)  Bac.  Ab.  Outlawry.     Mass.  St.  of  1782,  c.  19. 

(c)  Britten,  c.  12,  §  8.     Cro.  Jac.  426.     Noy,  1. 
Id)  Co.  Lit.  128.     Gilb.  C.  P.  197.     Finch,  27,  168. 


OUTLAWS   AND    PERSONS   ATTAINTED.  93 

follow  a  capital  sentence.  When  a  person  is  sentenced  for  a 
capital  offence,  he  is  immediately,  by  the  operation  of  the 
common  law  of  England,  placed  in  a  state  of  attainder.  It 
does  not  follow  upon  conviction  merely  ;  for  judgment  may 
be  an-ested.  So,  upon  a  judgment  of  outlawry,  in  case  of  a 
charge  of  a  capital  offence,  the  defendant  becomes  attainted ; 
and  so  of  acts  of  parliament  to  attaint  particular  persons  of 
treason  or  felony. 

The  incidents  of  attainder,  at  the  common  law,  may  be 
learned  from  Blackstone  (a)  and  Chitty.  (b)  The  only  point, 
that  concerns  the  present  subject,  is  the  capacity  of  the  at- 
tainted person  as  to  contracts.  And  in  this  respect  he  stands 
on  the  same  ground  as  a  person  outlawed  in  a  criminal  proc- 
ess. Indeed,  a  judgment  of  outlawry,  as  has  been  just  stated, 
puts  the  defendant  into  a  state  of  attainder,  if  it  be  in  a  crim- 
inal prosecution  and  for  a  capital  offence. 

The  person  attainted  can  maintain  no  suit  against  another, 
and  therefore  cannot  contract  for  his  own  benefit  (c)  He  is 
liable  to  the  suits  of  others,  though  this  liability  is  of  no  value 
to  them,  nor  injury  to  him,  unless  he  is  pardoned,  (d)  Upon 
the  reversal  of  a  judgment  of  outlawry,  and  the  pardon  of  a 
person  attainted,  the  party  is  restored  to  his  law.  His  com- 
petency to  contract,  and  his  right  to  enforce  contracts  by  suit, 
revive.  And  so  of  the  reversal  of  an  attainder  by  parlia- 
ment, (e) 

In  the  New  England  states,  no  forfeiture  of  property,  nor 
disability  to  contract  and  sue,  follows  the  conviction  and 
sentence  of  a  capital  or  other  offence ;  and  this,  probably,  is 
equally  true  of  all  the  states  in  the  Union,  except  it  may  be  by 
statute.  In  New  York,  no  conviction  works  corruption  of 
blood,  or  forfeiture  of  property,  except  in  cases  of  treason.  (/) 

The  Constitution  of  the  United  States  (g)  confers  on  congress 

(a)  4  Bl.  Com.  380.     2  ib.  254. 

(b)  1  Chit.  Crim.  Law,  723. 

(c)  See  Bullock  v.  Dodds,  2  B.  &  Aid.  258. 

(d)  Cro.  Eliz.  dlQ.     1  Wils.  217.     Foster's  Crown  Law,  61. 

(e)  Bac.  Ab.  Pardon.  H.  10  Johns.  232,  483.  3  Johns.  Cas.  333.  2 
Hawk.  c.  37. 

(/)   10  Johns.  233.  (g)   Art.  iii.  §  3. 


94  LAW   OF   CONTRACTS. 

the  power  of  declaring  the  punishment  of  treason  ;  but  de- 
clares, that  "  no  attainder  of  treason  shall  work  corruption 
of  blood,  or  forfeiture,  except  during  the  life  of  the  person  at- 
tainted." The  punishment  of  treason,  by  the  act  of  congress, 
is  death  without  any  forfeiture  of  property,  {a)  By  the  Con- 
stitution of  the  United  States,  (b)  congress  is  prohibited  from 
passing  any  bill  of  attainder  ;  and  the  same  prohibition  is  also 
laid  upon  the  legislatures  of  the  several  states,  (c)  The 
twenty-fifth  article  of  the  Bill  of  Rights,  prefixed  to  the  con- 
stitution of  Massachusetts,  had  previously  announced  that 
"  no  subject  ought,  in  any  case,  or  in  any  time,  to  be  declared 
guilty  of  treason  or  felony  by  the  legislature." 

6.  Persons  Excommunicated. 

By  the  English  law,  persons  excommunicated  were  formerly 
subject  to  some  of  the  same  disabilities  which  attach  to  out- 
laws and  persons  attainted.  Though  they  were  responsible 
on  their  contracts,  they  could  maintain  no  action  against  per- 
sons contracting  with  them,  nor  even  sue  en  autre  droit. 
This  and  other  disabilities  ceased,  however,  when  the  excom- 
municated persons  were  assoiled  by  the  proper  ecclesiastical 
authority,  {d) 

By  a  modern  English  statute,  (e)  the  causes  of  excommu- 
nication by  the  ecclesiastical  courts  are  reduced  in  number, 
and  it  is  enacted  that  no  civil  incapacity  shall  be  incurred  by 
that  punishment,  when  inflicted  as  a  spiritual  censure  for  an 
offence  of  ecclesiastical  cognizance.  (/)  Excommunication 
in  this  country  produces  no  legal  disability.  It  is  merely  an 
ecclesiastical  censure,  of  which  the  law  takes  no  notice. 

7.  Aliens. 

An  alien,  whether  enemy  or  friend,  cannot  hold  lands,  which 
come  to  him  by  purchase,  nor  will  land  descend  to  him.     But 

(a)  1  U.  S.  Laws  (Story's  ed.)  83.     (Peters'  ed.)  112. 
(6)  Art.  i.  §  9.  (c)  Art.  i.  §  10. 

(d)  See  Co.  Lit.  133,  134.  Syst.  PI.  11.  3  Bl.  Com.  102.  Bac.  Ab.  Ex- 
communication, (e)  51   Geo.  IIL  c.  127. 

(/)  See  1  Haggard's  Consistory  Rep.  Appx.  24-26,  the  statute  at  large. 


ALIENS.      SPENDTHEIFTS.  95 

no  one  except  the  sovereign  power,  the  king  in  England,  the 
commonwealth  here,  can  disturb  him  in  his  title  or  enjoyment. 
By  an  inquest,  the  sovereign  power  may  seize  an  alien's  lands, 
and  vest  the  title  in  itself,  (a) 

An  alien  enemy,  that  is,  the  subject  of  a  country  with  which 
we  are  at  war,  can  make  no  contract  with  our  citizens  during 
the  continuance  of  war,  unless  he  reside  here  under  the  license 
and  protection  of  the  constituted  authorities  of  the  United 
States. 

The  principle  on  which  this  disability  rests,  is  the  impolicy 
and  danger  of  permitting  an  enemy  to  recover  or  obtain  from 
our  citizens  money  or  other  property,  which  may  diminish  the 
resources  of  the  country  for  defence,  and  convert  them  to  pur- 
poses injurious  to  our  interests.  Contracts  made  with  an 
alien  enemy  during  war  are  regarded  as  illegal,  and  can  never 
be  enforced  against  our  citizens.  But  if  made  before  the  war, 
they  are  suspended  only  while  the  war  continues,  and  may  be 
enforced  in  our  courts  on  the  return  of  peace,  (b) 

At  common  law,  and  by  the  law  of  nations,  there  seems  to 
be  an  exception  to  this  rule,  in  the  case  of  ransom  bills,  &c. 
But  by  English  statutes,  contracts  for  ransoming  captured 
property  are  forbidden  and  declared  void,  (c) 

8.   Sjyendthrifts. 

In  Massachusetts  and  New  Hampshire  it  is  provided  by 
statute,  that  persons  who  are  put  under  guardianship  for  wast- 
ing their  estate  by  excessive  drinking,  gaming,  idleness,  or  de- 
bauchery of  any  kind,  can  make  no  valid  contract  for  the  pay- 
ment of  money,  or  the  sale  of  personal  or  real  property,  nor 
any  valid  gift,  after  notice  has  been  given  to  them  of  the 
application  to  the  probate  court,  to  have  guardians  appointed 
over  them,  and  the  order  of  notice  has  been  filed  in  the  office 

(a)  Wooddeson,  Lect.  xiv.  1  Bl.  Com.  392.  2  ib.  252,  297.  1  Johns.  Cas. 
399.     3  ib.  109.     1  Mass.  256.     8  ib.  445.     12  ib.  143. 

(6)  See  7  Taunt.  439,  (Amer  ed.)  and  note.  10  Johns.  69,  183.  Bac. 
Ab.  Alien. 

(c)  See  3  Bm-.  1731.  2  Doug.  641-650.  8  T.  R.  268.  2  Gallison,  325. 
15  Johns.  6.     1  Kent  Com.  (11th  ed.)  113. 


96  LAW   OF   CONTRACTS. 

of  the  register  of  deeds  for  the  county  where  they  may  belong. 
And  see  Revised  Statutes  of  Maine,  pp.  430,  433.  See 
Manson  v.  Felton,  13  Pick.  206.  In  McCrillis  v.  Bartlett,  8 
N.  Hamp.  569,  it  was  held  that  the  statute  did  not  render 
void  a  spendthrift's  implied  contracts  for  necessaries ;  and  that 
money  furnished  to  him  for  the  purpose  of  defending  against 
the  appointment  of  a  guardian,  where  such  defence  might 
reasonably  be  made,  might  be  regarded  as  a  necessary  ex- 
penditure. 

9.  Slaves. 

"While  slavery  existed  in  the  United  States,  the  condition  of 
slaves  here  was  analogous  to  that  of  the  slaves  of  the  an- 
cients, the  Greeks  and  Romans,  and  not  that  of  the  villeins  of 
feudal  times.  They  were,  generally  speaking,  not  considered 
as  persons  but  as  things.  By  the  Roman  law,  slaves  could 
not  take  property  by  descent  or  purchase ;  and,  such  in  the 
main,  seems  to  have  been  the  law  of  this  country,  (a)  Thus, 
a  devise  to  a  slave  was  void ;  for,  "  it  would  be  a  solecism," 
said  Taylor,  J.,  "  that  the  law  should  sanction  or  permit  the 
acquisition  of  property  by  those  from  whom  it  withholds  that 
protection,  without  which  property  is  useless."  "  A  slave 
could  bring  no  action.  He  could  neither  acquire  nor  transfer 
property  by  descent  or  purchase."  (b)  No  promise  made  to  a 
slave  could  be  enforced  by  a  court  either  of  law  or  equity,  (c) 
A  note  given  to  a  slave  was  void,  and  the  master  could  not 
recover  it.  (d)  There  were  some  modifications  of  these  rigid 
rules  of  the  civil  law,  by  usage  and  statutes,  in  the  differ- 
ent slave-holding  states ;  but  these  were  the  prevalent  doc- 
trines, (e) 

(rt)   Bynum  v.  Bostick,  4  Desaus.  267. 

(b)  Cunningham's  Heirs  v.  Cunningham's  Executors,  Cam.  &  Norw.  356. 
.  (c)  Beall  V.  Joseph.  Hardin,  52.  See  also  Glen  v.  Hodges,  9  Johns.  67, 
where  it  was  decided  that  a  slave  could  not  contract  a  debt. 

(d)  Gregg  V.  Thompson,  2  Rep.  Const.  Ct.  (S.  C.)  331. 

(e)  See  Heineccius(Inst.)  lib.  i.  tit.  3.  ii.tit.  9.  iii.  tit.  18.  Recitationes, 
lib.  i.  tit.  5.     XV.  tit.  i.  §  178.     xlv.  tit.  3. 

A  slave  might  contract  with  his  master  respecting  his  manumission,  and  the 
law  enforiid  the  agreement.  3  Bos.  &  Pul.  69.  7  Johns.  324.  2  Root,  364. 
See  also  9  Grattan,  708.     Cobb  on  Slavery,  278-317, 


SEAMEN.  97 

See  Stroud's  Law  relating  to  Slavery,  and  Kurd's  two  vol- 
umes on  Freedom  and  Bondage,  published  in  1858. 

10.  Seamen. 

By  a  statute  of  the  United  States,  passed  on  the  20th  of 
July,  1790,  (a)  it  is  provided  that  "  every  master  or  com- 
mander of  any  ship  or  vessel  bound  from  a  port  in  the  United 
States  to  any  foreign  port,  or  of  any  ship  or  vessel  of  the 
burden  of  fifty  tons  or  upwards,  bound  from  a  port  in  one 
state  to  a  port  in  any  other  than  an  adjoining  state,  shall,  be- 
fore he  proceed  on  such  voyage,  make  an  agreement  in  writ- 
ing or  in  print,  with  every  seaman  or  mariner  on  board  such 
ship  or  vessel  (except  such  as  shall  be  apprentice  or  servant  to 
himself  or  owners)  declaring  the  voyage  or  voyages,  term  or 
terms  of  time,  for  which  such  seaman  or  mariner  shall  be 
shipped."  And  it  was  also  therein  provided  that  if  the  master 
should  carry  out  any  seaman  without  such  agreement  being 
first  made  and  signed  by  the  seamen  and  mariners,  such  sea- 
man should  not  be  bound  by  the  regulations,  nor  subject  to 
the  penalties  and  forfeitures  contained  in  said  statute.  Under 
this  last  provision  it  was  held  that  if  a  seaman  entered  upon 
a  voyage  without  signing  shipping  articles,  there  was  an  im- 
plied contract  which  bound  him  to  remain  with  the  ship  until 
the  termination  of  the  voyage.  Jansen  v.  The  Heinrich, 
Crabbe,  226.     See  Ware  (2d  ed.)  448. 

By  another  statute  of  the  United  States,  passed  on  the  20th 
of  July,  1840  (&)  all  shipments  of  seamen  made  contrary  to 
the  provisions  therein  contained,  or  contained  in  any  other 
statute  of  the  United  States,  are  declared  void,  and  it  is  pro- 
vided that  any  seaman,  so  shipped,  may  leave  the  service  at 
any  time,  and  demand  the  highest  rate  of  wages  paid  to  any 
seaman  shipped  for  the  voyage,  or  the  sum  agreed  to  be  given 
him  at  his  shipment. 

Questions  have  been  often  raised,  whether  shipping  articles, 
signed  by  seamen,  described  the  voyage  or  voyages  for  which 

(a)  1  U.  S.  Laws  (Story's  ed.)  133,  (Peters'  ed.)  104. 
(&)  5  U.  S.  Laws  (Peters'  ed.)  395. 
.      7 


98  LAW   OF   CONTEACTS. 

they  shipped  sufficiently  to  bind  them.  And  if  there  is  am- 
biguity in  the  description,  or  it  is  susceptible  of  two  construc- 
tions, that  which  is  most  favorable  to  the  seaman  is  adopted. 
Crabbe,  supra.     Daveis,  407.     Sprague's  Decis.  300,  302. 

Shipping  articles  for  a  voyage  "  from  Philadelphia  to  Gib- 
raltar, other  ports  in  Europe  or  South  America,  and  back  to 
Philadelphia  "  were  held  sufficient,  and  to  authorize  a  voyage 
directly  from  Gibraltar  to  South  America,  without  proceeding 
to  any  intermediate  port  in  Europe,  but  not  to  a  return  from 
South  America  to  a  European  port.  And  a  seaman  was  held 
not  to  be  justified  in  leaving  the  ship  in  South  America  un- 
less he  knew  that  a  change  in  the  voyage  described  in  the 
shipping  articles  had  been  resolved  on  and  the  ship  was  about 
to  sail  to  a  port  in  Europe.  Douglass  v.  Eyre,  Gilpin,  147. 
And  where  the  voyage  was  described  in  the  shipping  articles 
to  be  "  from  Philadelphia  to  South  America,  or  any  other  port 
or  ports,  backwards  and  forwards,  when  and  where  required, 
and  back  to  Philadelphia,"  the  description  was  not  such  as  to 
avoid  the  contract,  and  that  the  master  had  not  violated  the 
articles  by  proceeding  from  South  America  to  Europe,  and 
that  the  seamen  were  not  justified  in  leaving  the  ship  for  that 
cause.  Magee  v.  The  Moss,  Gilpin,  219.  A  voyage  to  a 
port  named,  "  or  elsewhere  for  a  market,"  was  held  by  Wood- 
bury, J.,  to  be  sufficiently  definite,  and  to  be  binding  on  the 
seamen.  1  Woodb.  &  M.  338.  See  Brown  v.  Jones,  2  Gal- 
lison,  477,  where  the  voyage  was  described  as  "  from'  Boston 
to  the  Pacific,  Indian,  and  Chinese  Oceans,  or  elsewhere,  on 
a  trading  voyage,  and  from  thence  back  to  Boston."  Story, 
J.,  said  "  it  would  be  an  utter  evasion  of  the  statute  to  allow 
such  an  indefinite  expression  as  '  elsewhere '  to  control  or  ex- 
tend the  meaning  of  the  other  certain  description  of  the  voy- 
age, or  to  constitute,  of  itself,  a  sufficient  description."  And 
the  same  was  held  in  Ely  v.  Peck,  7  Conn.  242.  See  1  Hagg. 
Adm.  Rep.  248,  347. 

In  the  shipping  articles  of  an  English  vessel,  the  voyage 
was  described  to  be  from  Liverpool  to  Savannah  and  any  port 
or  ports  of  the  United  States,  of  the  West  Indies,  and  of 


SEAMEN.  99 

British  North  America,  the  term  of  service  not  to  exceed 
twelve  months.  Held,  that  the  voyage  intended  was  confined 
to  the  ports  on  the  eastern  shore  of  the  continent,  and  that 
the  articles  did  not  authorize  a  voyage  to  San  Francisco  or 
the  northwest  coast.     The  Ada,  Daveis,  407. 

A  voyage  was  described  to  be  "  from  Havre  to  New  Or- 
leans, and  thence  to  one  or  more  ports  in  Europe,  and  finally 
back  to  a  port  of  discharge  in  the  United  States,  for  a  period 
not  exceeding  twelve  calendar  months."  Held,  that  there 
were  two  restrictions,  one  of  time  the  other  of  ports,  and  that 
the  seamen  were  not  bound  for  twelve  months,  unless  the  ves- 
sel went  to  the  ports  in  the  order  described.  Sprague's  Decis. 
485.  The  words  "  a  voyage  from  Boston  to  Valparaiso  or 
other  ports  of  the  Pacific  Ocean,  at  and  from  thence  home 
direct  or  via  ports  in  East  Indies  or  Europe "  were  held 
not  to  describe  the  voyage  with  sufficient  certainty,  and  not 
to  bind  the  seamen  after  arrival  at  Valparaiso.  Sprague's 
Decis.  300  and  2  Curtis,  301.  An  English  seaman  signed 
shipping  articles  in  England,  which  described  the  voyages  to 
be  "  from  Liverpool  to  Calcutta,  thence,  if  required,  to  any 
ports  or  places  in  the  Indian,  Pacific  and  Atlantic  Oceans, 
and  China  and  Eastern  Seas,  thence  to  a  port  for  orders,  and 
to  the  continent  of  Europe,  if  required,  and  back  to  a  final 
port  of  discharge  in  the  United  Kingdom ;  the  term  not  to  ex- 
ceed three  years."  The  vessel  sailed  from  Liverpool  to  Cal- 
cutta, and  thence  to  Boston,  where  a  seaman  left  her  without 
the  master's  consent,  and  there  brought  an  action  against  the 
master  for  the  amount  of  wages  which  would  have  been  due 
to  him  if  he  had  been  there  discharged.  Defences,  that  the 
plaintiff"  had  forfeited  his  wages  by  desertion,  and  that  an 
English  statute  provided  that  in  a  contract  like  this,  no  sea- 
man should  sue  for  wages  in  any  court  abroad,  except  in  cases 
of  discharge  or  of  danger  to  life.  It  was  decided  that  the 
voyage  was  not  so  described  as  to  be  binding  by  the  English 
law  (as  held  in  the  case  of  The  Westmoreland,  1  W.  Rob. 
Adm.  Rep.  216)  and  judgment  was  rendered  for  the  plaintiff". 
Roberts  v.  Knights,  7  Allen,  449. 

It  was  said  by  Story,  J.,  (Brown  v.  Lull,  2  Sumner,  449,) 


100  LAW   OF   CONTRACTS. 

that  shipping  articles,  in  their  common  form,  coincide  with  the 
general  principles  of  maritime  law  as  to  seamens'  wages,  and 
that  courts  of  admiralty  jealously  watch  every  deviation  from 
those  principles,  in  the  articles,  as  injurious  to  the  rights  of 
seamen,  and  founded  in  an  unconscionable  inequality  of 
benefit  between  the  parties  ;  that  seamen  are  extravagant,  in- 
different to  the  future,  and  easily  overreached  ;  and  that  those 
courts  consider  them  peculiarly  entitled  to  their  protection,  and 
are  not  confined  to  the  mere  dry  and  positive  rules  of  the  com- 
mon law,  but  act,  as  far  as  their  powers  extend,  upon  the  liberal 
jurisprudence  of  courts  of  equity  ;  and  when  they  find  in  ship- 
ping articles  any  stipulation  which  derogates  from  the  general 
rights  and  privileges  of  seamen,  they  declare  it  void,  unless 
the  nature  and  operation  of  such  stipulation  were  fully  and 
fairly  explained  to  the  seamen,  and  additional  compensation 
is  allowed  to  them,  adequate  to  the  restrictions  and  risks  im- 
posed on  them  by  such  stipulation.  And  he  held  that  because 
capture  of  a  neutral  ship  does  not  dissolve  the  seamens'  con- 
tract for  wages,  and  if  she  is  restored,  they  are  entitled  to  full 
wages  for  the  whole  voyage,  if  they  remained  on  board,  or  if, 
being  taken  out,  they  were  unable,  without  their  own  fault,  to 
rejoin  the  ship,  therefore,  the  following  clause  in  shipping  ar- 
ticles was  void  :  "  In  case  of  the  said  vessel  being  taken  or 
lost  in  the  course  of  said  voyage,  no  wages  shall  be  demanded 
or  received,  except  the  advance  wages  received  at  the  time  of 
entry  on  board  ;  and  if  the  vessel  shall  be  restrained  for  more 
than  thirty  days  at  any  one  time,  the  wages  shall  cease  dur- 
ing such  restraint."  {a)  And  he  cited  the  judgment  of  Lord 
Stowell  in  the  case  of  The  Juliana,  2  Dodson,  507.  In  Har- 
den V.  Gordon,  2  Mason,  541,  Story,  J.,  had  before  decided 
that  a  stipulation  by  seamen  that  they  should  pay  for  medical 
advice,  and  for  medicines,  without  any  condition  that  there 
should  be  a  suitable  medicine  chest  on  board,  was  void,  being 
contrary  to  the  policy  of  the  eighth  section  of  the  statute  (be- 
fore mentioned)  of  July  20th  1790.  In  the  case  of  The 
Sarah  Jane,  1  Blatchf.  &  Howland,  401,  a  stipulation  that 

(<i)  See  also  Seamen  of  Fair  American  v.  Fair  American  and  Captain, 
Bee,  134.     Swift  v.  Clark,  15  Mass.  173. 


SEAMEN.  101 

the  seamen  should  prosecute  their  suits  for  wages  in  courts 
of  common  law  only  (as  it  amounted  to  a  waiver  of  their 
lien  upon  the  vessel)  was  void,  unless  it  was  proved  that  the 
matter  was  clearly  explained  to  them  before  they  entered 
into  such  stipulation,  and  that  no  prejudice  to  their  rights 
would  be  thereby  incurred.  And  when  the  crew  of  a  foreign 
vessel,  about  to  sail  to  this  country,  agreed  that  they  would  not 
sue  in  any  courts  abroad,  but  would  refer  all  disputes  to  the 
courts  of  their  own  country,  it  was  held  that  though  this  was 
a  lawful  agreement,  yet  that  the  interests  of  justice  required 
it  to  be  disregarded,  when  the  voyage  was  broken  up  in  an 
American  port  by  some  other  cause  than  the  wreck  of  the 
vessel,  or  where  the  seaman  was  discharged,  or  became 
entitled  to  a  discharge  by  reason  of  improper  treatment. 
Bucker  v.  Klorkgeter,  Abbotts'  Rep.  402.  A  stipulation  in 
shipping  articles  that  seamen  shall  not  demand  their  wages 
until  after  the  expiration  of  a  certain  time  is  void,  if  their 
service  is  completed,  or  they  are  discharged,  before  such  time 
expires.  The  Cypress,  1  Blatchf.  &  Rowland,  83.  See  also 
Ware  (2d  ed.)  514.  Sprague's  Decis.  199,  556.  Olcott,  24. 
2  Paine,  229.     3  Kent  Com.,  Lecture  xlvi. 

A  seaman  does  not  forfeit  his  wages  by  leaving  a  vessel 
that  is  dangerously  unseaworthy,  and  which  the  master  omits 
to  repair  when  she  is  in  port  ai)d  he  has  a  suitable  opportu- 
nity to  do  it.  Savary  v.  Clements,  8  Gray,  155.  When  the 
owners  of  a  vessel  are  sued  for  the  recovery  by  a  seaman  of 
damages  caused  by  the  master's  abuse  in  wounding  him  and 
discharging  him  in  a  foreign  port,  the  jury  may  allow  the  sea- 
man wages  up  to  the  time  when  he  had  so  recovered  as  to  be 
able  to  sail  for  home,  and  for  such  further  time  as  was  reason- 
able for  obtaining  a  passage  and  making  a  voyage  home,  and 
the  expenses  of  his  board,  and  for  nursing,  medicine  and  med- 
ical attendance  until  he  had  so  recovered,  and  of  his  passage 
home,  although  the  time  was  longer  than  that  occupied  by  the 
voyage  described  in  the  shipping  articles.  Croucher  v.  Oak- 
man,  3  Allen,  185. 

When  the  prosecution  of  a  voyage  is  rendered  impossible 
by  any  disaster  to  the  vessel,  the  seamen  are  discharged  from 


102  LAW  OP   CONTRACTS. 

the  principal  obligation  to  perform  the  voyage,  but  not  from 
the  incidental  obligation  to  render  their  best  services  for  sav- 
ing as  much  of  the  ship  and  cargo  as  is  practicable.  And  by 
the  law  of  this  country,  seamen,  in  cases  of  shipwreck,  are  en- 
titled to  their  full  wages  up  to  the  time  of  the  disaster,  if  by 
their  exertions  enough  of  the  freight  and  wreck  is  saved  ; 
and  are  also  entitled  to  claim,  according  to  the  merit  of  their 
services,  an  extra  reward,  beyond  their  wages,  against  the 
property  saved  ;  the  old  English  rule,  that  freight  is  the  only 
fund  against  which  wages  can  be  claimed,  having  never  been 
adopted  in  the  United  States,  and  never  having  been  the  rule 
of  the  maritime  law.  The  Dawn,  Daveis,  121.  See  Locke 
V.  Swan,  13  Mass.  76. 

A  custom  of  a  port,  that  the  advance  wages  of  seamen  due 
under  shipping  articles,  shall  be  paid  to  the  shipping  agent,  to 
be  paid  by  him,  for  their  benefit,  to  the  keeper  of  the  boarding- 
house  who  brings  them,  is  unreasonable  and  does  not  bind 
them,  though  they  know  such  custom  when  they  sign  the  arti- 
cles.    Metcalf  V.  Weld,  14  Gray,  210. 

By  the  fourth  section  of  the  statute  of  July  20th,  1790,  (be- 
fore cited,)  it  is  provided  that  "  no  sum,  exceeding  one  dollar, 
shall  be  recovered  of  any  seaman  or  mariner  "  in  the  merchant 
service,  "  by  any  person  for  any  debt  contracted  during  the 
time  such  seaman  or  mariners  shall  actually  belong  to  any 
ship  or  vessel,  until  the  voyage  for  which  such  seaman  or 
mariner  engaged  shall  be  ended."  In  the  case  of  Reynard  v. 
Brecknell,  4  Pick.  302,  it  was  held  that  as  the  effect  of  this 
provision  is  to  avoid,  or  at  least  to  suspend,  a  contract  which, 
but  for  that  provision,  might  be  enforced  at  law,  the  seaman 
must  strictly  prove  his  exemption,  and  must  therefore  produce 
the  shipping  paper  which,  by  the  first  section  of  the  same 
statute,  he  is  required  to  sign,  or  make  out  a  case  for  the  ad- 
mission of  secondary  evidence  of  that  paper. 

■  The  United  States  statute,  passed  on  the  19th  of  June,  1813, 
requires  that "  the  master  or  skipper  of  any  vessel  of  the  burden 
of  twenty  tons  or  upwards,  qualified  according  to  law  for  carry- 
ing on  the  bank  or  other  cod  fisheries,  bound  from  a  port  of 


SEA.MEN.  103 

the  United  States  to  be  employed  in  any  such  fishery,  shall, 
before  proceeding  on  such  fishing  voyage,  make  an  agreement 
in  writing  or  print,  with  every  fisherman  who  may  be  em- 
ployed therein ;  and  in  addition  to  such  terms  of  shipment  as 
may  be  agreed  on,  shall  in  such  agreement  express  whether  the 
same  is  to  continue  for  one  voyage  or  for  the  fishing  season, 
and  shall  also  express  that  the  fish,  or  the  proceeds  of  such 
fishing  voyage  or  voyages,  which  may  appertain  to  the  fisher- 
men, shall  be  divided  among  them  in  proportion  to  the  quan- 
tities or  number  of  said  fish  which  they  may  respectively  have 
caught;  which  agreement  shall  be  indorsed  or  countersigned 
by  the  owner."  3  U.  S.  Laws,  (Peters'  ed.)  2.  Since  the  pass- 
ing of  the  United  States  statute  of  May  24th,  1828,  «  author- 
izing the  licensing  of  vessels  to  be  employed  in  the  mackerel 
fishery  "  a  vessel  licensed  for  the  cod  fishery  is  not  authorized 
by  such  license  to  engage  in  the  mackerel  fishery.  The 
Nymph,   Ware,  (2d  ed.)  259. 

Under  the  statute  of  June,  1813,  the  shipping  articles,  which 
are  required  to  be  indorsed  or  countersigned  by  the  owner  of 
the  vessel,  do  not  conclusively  determine,  by  the  indorsement, 
who  are  the  owners,  nor  with  whom  the  agreement  was  made; 
and  a  seaman  may  have  his  remedy  against  all  the  owners  for 
his  share  of  the  fish  taken,  and  may  show,  by  other  evidence 
than  the  articles,  who  the  owners  are.  And  on  showing  that 
others  besides  those  who  indorsed  the  articles  were  owners 
and  shared  in  the  proceeds  of  the  voyage,  he  may  make  them 
defendants  jointly  with  those  by  whom  the  articles  were  in- 
dorsed, and  recover  against  them  all.  Wait  v.  Gibbs,  4  Pick. 
298.  The  owners  of  a  fishing  vessel  may  employ  seamen  to 
navigate  her  and  to  fish  on  wages  instead  of  shares  ;  and  if  one 
of  the  owners  acts  as  master,  and  the  others  do  not  interfere, 
he  will  be  deemed  their  agent ;  and  such  contract,  made  by 
him  in  his  name,  will  enure  to  their  use  and  bind  them.  And 
a  seaman's  contract  for  wages  is  not  affected  by  his  signing 
shipping  articles  agreeing  to  receive  a  share  of  the  fish  as  his 
compensation,  if  fraudulent  representations  induced  him  to 
sign  them.  Baker  v.  Corey,  19  Pick.  496.  The  general 
owners  of  a  vessel  engaged  in  the  mackerel  fishery  are  liable, 


104  LAW   OP   CONTEACTS. 

as  such,  for  the  wages  of  a  cook  employed  by  the  master,  un- 
less the  master  has  become  owner  pi'o  hac  vice,  or  there  is 
some  usage  or  contract  by  which  the  master  or  the  master  and 
crew  only  are  liable.  Such  owners'  liability  is  suspended  only 
when  they  have  let  out  the  vessel  for  a  terra  of  time  to  another 
person,  giving  him  the  entire  control  for  such  term,  to  employ 
her  in  such  voyages  and  enterprises  as  he  pleases,  to  engage  and 
employ  seamen,  and  to  pay  all  expenses  incident  to  the  navi- 
gation, (a)  It  is  not  suspended  nor  aflfected  by  an  agreement 
in  the  shipping  articles  "  that  the  owner  or  agent  of  said 
schooner  is  not  holden  for  any  wages  due  on  said  voyage,  un- 
less by  special  agreement  made  with  the  owner  or  agent." 
And  although  by  the  general  usage  in  the  mackerel  fishery, 
the  amount  of  the  cook's  wages  is  always  to  be  deducted  from 
that  part  of  the  proceeds  of  the  voyage  which  is  proportioned 
to  the  master  and  crew,  and  not  from  that  part  retained  by  the 
owners  of  the  vessel,  yet  this  does  not  exempt  the  owners 
from  their  legal  liability  for  the  cook's  wages.  Harding  v. 
Souther,  12  Cush.  307.  [b) 

For  full  knowledge  of  the  law  respecting  seamen's  con- 
tracts, duties  and  rights,  resort  is  to  be  had  to  the  numerous 
Admiralty  Reports,  English  and  American,  and  Treatises  on 
Shipping  and  on  Maritime  Law. 

11.  Attorneys  and  other  Agents. 

The  word  "  attorneys  "  here  means  persons  constituted,  by 
letter  under  seal,  to  transact  another's  business.  Co.  Lit.  52. 
By  agent  is  meant  a  person  in  any  way  authorized  to  act 
for  another.  Agent  is  the  genus,  attorney  a  species.  The 
correlate  of  attorney  is  constituent ;  of  agent,  principal.     In 

(a)   See  Mayo  v.  Snow,  2  Curtis,  102. 

(6)  "  In  the  whale  fisliery,  no  statute  has  yet,  in  terms,  required  the  contract 
to  be  in  writing,  but  the  invariable  usage  of  that  trade,  and  in  fact  the  nature 
of  the  contract,  have  insured  the  universal  adoption  of  a  written  agi-eement. 
It  contains  a  description  of  the  voyage,  the  share  or  '  lay,'  as  it  is  called,  of 
each  officer  and  seaman,"  &c.  Curtis  on  Rights  and  Duties  of  Merchant  Sea- 
men, 60,  and  Appendix,  391.  And  see  Barney  v.  Coffin,  3  Pick.  115.  Bax- 
ter v.  Rodman,  ib.  435.  Tripp  r.  BrowncU,  12  Cush.  376.  Taber  i;.  Jenny, 
Sprague's  Decis.  315. 


AGENTS.  105 

common  parlance,  however,  these  terms  are  used  indiscrimi- 
nately ;  and  a  like  want  of  precision  is  found  in  many  modern 
books.  What  is  now  to  be  said  concerning  contracts  by 
agents  will  include  attorneys,  without  thus  designating  them 
except  when  the  word  "  attorney  "  is  used  in  quotations  that 
may  be  made. 

An  agent  cannot  bind  his  principal  by  deed,  (that  is,  a  spe- 
cialty,) unless  he  is  empowered  by  deed,  (a)  There  is  an  ex- 
ception to  this  rule  in  case  of  a  corporation  which  has  a 
common  seal.  A  vote  of  the  corporation  authorizing  an  agent 
to  contract  by  deed  is  sufficient.  And  see,  as  to  partners, 
post.  124.  A  parol  (unsealed)  authority  will  authorize  a  parol 
contract,  and  an  oral  authority  will  warrant  a  written  exercise 
of  it.  (6) 

A  deed  made  by  an  agent  for  his  principal  must,  to  give  it 
validity  as  such,  be  made  in  the  name  of  the  principal.  If  it 
be  executed  in  the  principal's  name,  it  is  not  material  by  what 
form  of  words  such  execution  is  denoted ;  whether  it  be  "  for 
A.  B.,  C.  D."  or  "  A.  B.  by  C.  D.  his  attorney  "  or  "  C.  D.  at- 
torney for  A.  B."  (c) 

"  The  conveyance,"  says  Parsons,  C.  J.,  7  Mass.  19,  "  must 
be  the  act  of  the  principal,  and  not  of  the  attorney  ;  otherwise 
the  conveyance  is  void.  And  it  is  not  enough  for  the  attor- 
ney, in  the  form  of  the  conveyance,  to  declare  that  he  does  it 
as  attorney  ;  for  he  being  in  the  place  of  the  principal,  it  must 
be  the  act  and  deed  of  the  principal,  done  and  executed  by 
the  attorney  in  his  name."  And  Story,  J.,  5  Peters,  350,  says 
that  though  it  is  apparent  that  the  agent,  in  cases  in  which  he 
wrongly  executes  a  deed  in  his  own  name,  intended  to  bind 
his  principal,  yet  "  the  law  looks  not  to  the  intent  alone,  but 
to  the  fact  whether  that  intent  has  been  executed  in  such  a 
manner  as  to  possess  a  legal  validity." 

(a)  Paley  on  Agency,  (4th  Amer.  ed.)  157.  Hanford  v.  McNair,  9  Wend. 
64.     Wheeler  v.  Nevins,  34  Maine,  54.     By  Sewall,  J.,  5  Mass.  40. 

(b)  Anon.  12  Mod.  564.     Kyd  on  Bills,  (3d  ed.)  189. 

(c)  Combes's  case,  9  Co.  76.  Wilks  v.  Back,  2  East,  142.  Elwell  v.  Shaw, 
16  Mass.  42  and  1  Greenl.  339.  Fowler  v.  Shearer,  7  Mass.  14.  Brinley  v. 
Mann,  2  Cush.  33  7.  Mussey  v.  Scott,  7  Cush.  215.  Jones's  Devisees  v.  Car- 
ter, 4  Hen.  &  Munf.  184.  Wllburu  v.  Larkin,  3  Blackf.  55.  Hunter  v.  Miller, 
6  B.  Monroe,  612.     Eckhart  v.  Reidel,  16  Texas,  67. 


106  LAW   OF   CONTRACTS. 

Contracts  by  agents  as  such,  if  made  in  proper  form,  are 
the  contracts  of  the  principals,  and  of  the  same  binding  force 
as  if  made  by  themselves  personally.  If  made  by  an  author- 
ized agent  in  terms  which  do  not  legally  bind  the  principal, 
they  sometimes  bind  the  agent.  So  if  made  by  him  who  as- 
sumes to  act  as  agent,  but  who  is  not  duly  authorized  to  act 
as  such,  they  may  bind  him  personally.  But  it  does  not 
necessarily  follow  that  a  contract  which  fails  to  bind  the  prin- 
cipal, whether  made  by  an  authorized  agent  or  by  one  who 
wrongly  assumes  to  act  as  such,  does  therefore  render  the  per- 
son who  made  it  answerable  for  its  performance. 

Whether  a  contract  is  that  of  the  principal  or  of  the  agent, 
or  of  neither,  whether  it  binds  the  one  or  the  other,  or  is  void, 
depends  upon  the  legal  effect  of  its  terms  and  the  legal  au- 
thority of  the  person  acting  as  agent.  See  Abbey  v.  Chase, 
6  Cush.  56.  On  these  points,  though  the  decisions  are  numer- 
ous, and  in  confusion  if  not  in  conflict,  yet  perhaps  all  the 
cases  in  which  the  party's  agency,  real  or  assumed,  appears 
on  the  face  of  the  contract,  are  comprised  in  the  following 
principles  or  rules  of  decision  : 

First.  If  a  duly  authorized  agent  uses  such  terms  as  legally 
import  an  undertaking  by  the  principal  only,  the  contract  is 
that  of  the  principal,  and  he  alone  is  the  party  by  whom  it  is 
to  be  performed. 

Second.  If  a  person,  assuming  to  act  as  agent,  uses  such 
terms  as  legally  import  a  personal  undertaking  by  himself,  and 
not  by  the  principal,  the  contract  is  his,  and  not  that  of  the 
principal,  and  is  to  be  performed  by  him  alone.  In  such 
case  it  is  immaterial  whether  he  was  or  was  not  authorized  to 
act  as  agent. 

Third.  If  one  who  is  not  duly  authorized  to  act  as  agent, 
assumes  to  act  as  such,  and  uses  such  terms  as  legally  import 
the  undertaking  of  the  principal  only,  the  contract  is  void. 

In  cases  of  simple  contracts  (except  negotiable  notes,  and 
bills  of  exchange)  in  which  no  agency  appears  on  their  face, 
but  they  purport  to  be  made  by  the  parties  personally,  "  it  is 
competent,"  as  said  by  Baron  Parke,  in  Higgins  v.  Senior,  8 
Mees.  &  Welsh.  844,  "  to  show  that  one  or  both  of  the  parties 


AGENTS.  107 

were  agents  for  other  persons  and  acted  as  such  agents  in 
making  the  contract  so  as  to  give  the  benefit  of  the  contract 
on  the  one  hand  to,  (4  Barn.  &  Cres.  664,)  and  charge  with 
liability  on  the  other,  (15  East,  62,)  the  unnamed  principal ; 
and  this  evidence  in  no  way  contradicts  the  written  agree- 
ment. It  does  not  deny  that  it  is  binding  on  those  whom,  on 
the  face  of  it,  it  purports  to  bind,  but  shows  that  it  also  binds 
another,  by  reason  that  the  act  of  the  agent,  in  signing  the 
agreement  in  pursuance  of  his  authority,  is  in  law  the  act  of 
the  principal."  To  the  same  effect  are  the  remarks  of  Lord 
Denman,  in  Willm.  Woll.  &  Dav.  241,  and  in  5  B.  &  Ad.  393. 
The  same  law  is  applied  to  oral  contracts  made  by  an  agent 
in  his  own  name.  Addison  on  Con.  (2d  Amer.  ed.)  618.  5 
Gray,  562.  Thus  when  a  factor  or  other  agent  sells  the  goods 
of  his  principal  without  disclosing  his  agency  or  its  being 
otherwise  known  to  the  buyer,  and  payment  has  not  been 
made  to  the  agent,  the  principal  may  recover  payment  from 
the  buyer. 

"  If  a  factor  sells  goods  as  owner,  and  the  buyer  bond  fide 
purchases  them  in  the  belief  that  he  is  dealing  with  the  owner, 
he  may  set  off  a  debt  due  to  him  from  the  agent  against  a 
demand  preferred  by  the  principal."  By  Creswell,  J.,  7  C.  B. 
693.  "  Where  a  factor,"  says  Lord  Mansfield,  "  dealing  for  a 
principal,  but  concealing  the  principal,  delivers  goods  in  his 
own  name,  the  person  contracting  with  him  has  a  right  to 
consider  him  to  all  intents  as  the  principal ;  and  though  the 
real  principal  may  appear  and  bring  an  action  upon  the  con- 
tract, against  the  purchaser  of  the  goods,  yet  the  purchaser 
may  set  off  any  claim  he  may  have  against  the  factor,  in  an- 
swer to  the  demand  of  the  principal."  Rabone  v.  Williams, 
7  T.  R.  360,  note.  Bat  when  the  purchaser  has  notice,  at  the 
time  of  purchasing,  that  the  seller  is  dealing  merely  as  agent 
of  some  other  person,  he  cannot,  though  he  acted  in  good 
faith,  set  off  a  debt  due  to  him  from  the  seller,  at  the  expense 
of  the  principal.  The  buyer,  in  such  case,  needs  not  to  have 
notice  who  the  principal  is.  Fish  v.  Kempton,  7  C.  B.  687. 
See  also  Squires  v.  Barber,  37  Verm.  558. 

So  if  an  agent  buys  goods  in  his  own  name  for  a  principal, 


108  LAW   OF   CONTRACTS. 

the  seller,  on  discovering  the  principal,  may  recover  payment 
from  him.  "  An  unknown  principal,  when  discovered,  is 
liable,"  says  Lord  Ellenborough,  "  on  the  contracts  which  his 
agent  makes  for  him ;  but  that  must  be  taken  with  some 
qualification  ;  and  a  party  may  preclude  himself  from  recover- 
ing over  against  the  principal,  by  knowingly  making  the  agent 
his  debtor."     Paterson  v.  Gandasequi,  15  East,  68.  {a) 

As  to  bills  of  exchange  and  negotiable  notes,  it  has  been 
long  settled  that  he  who  takes  negotiable  paper  contracts 
with  him  who,  on  its  face,  is  a  party  thereto,  and  with  no  other 
person.  By  Lord  Abinger  and  by  Baron  Parke,  9  Mees.  & 
Welsh.  92,  96.  Broom  on  Parties,  §  187.  Story  on  Bills,  (4th 
ed.)  §  76.  Edwards  on  Bills,  (2d  ed.)  80.  Byles  on  Bills,  (4th 
Amer.  ed.)  96,  97.  2  Taylor  on  Ev.  934.  8  Allen,  460.  Hence 
evidence  is  not  admissible  to  charge  any  other  person  thereon 
upon  the  ground  of  his  having  been  the  copartner  or  principal 
of  the  party  named,  [b)  Whether  a  bill  or  note  is,  on  its  face, 
the  contract  of  the  principal  or  of  the  agent,  is  decided  by  the 
same  rules  of  construction  which  are  applied  to  other  simple 
contracts. 

The  third  of  the  above  suggested  rules,  though  not  sus- 
tained by  uniformity  of  decisions,  seems  to  be  supported  by 
the  better  reason  and  the  preponderance  of  authority.     There 

(a)  These  are  matters  of  common  learning  which  are  found,  with  citations 
of  most  of  the  adjudged  cases,  in  the  Treatises  on  Contracts  that  are  in  gen- 
eral use,  and  also  in  Russell  on  Factors,  Smith  on  Merc.  Law,  Paley  on 
Agency,  and  Story  on  Agency.  See  also  Taintor  v.  Prendergast,  3  Hill,  72. 
Pitts  V.  Mower,  18  Maine  361.  Edwards  v.  Golding,  20  Verm.  30.  Walter 
V.  Ross,  2  "Wash.  C.  C.  283.  Hogan  v.  Shorb,  24  Wend.  458.  Huntington 
V.  Knox,  7  Cush.  371.  Eastern  Railroad  Co.  v.  Benedict,  5  Gray,  562.  Ler- 
ned  V.  Johns,  9  Allen,  421. 

(i)  Bills.  Thomas  v.  Bishop,  2  Strange,  955.  Emly  v.  Lye,  15  East,  7. 
Sowerby  v.  Butcher,  2  Crompt.  &  Mees.  368  and  4  Tyrw.  320.  Mare  v. 
Charles,  5  El.  &  Bl.  978.  Leadbitter  v.  Farrow,  5  M.  &  S.  345.  Goupy  v. 
Harden,  7  Taunt.  159  and  2  Marsh.  454.  Hancock  v.  Fairfield,  30  Maine, 
299.  Fuller  v.  Hooper,  3  Gray,  341.  Bank  of  British  North  America  v. 
Hooper,  5  Gray  571.  Slawson  v.  Loring,  5  Allen,  340.  Pentz  v.  Stanton, 
10  Wend.  271.  Notes.  Fox  v.  Frith,  10  ]\Ioes.  &  Welsb.  136.  Stackpole  v. 
Arnold,  11  Mass.  27.  Fiske  v.  Eldridgc,  12  Gray,  474.  Haverhill  I\Iut.  F 
Ins.  Co.  V.  Newhall,  1  Allen,  130.     Babcock  v.  Bemau,  1  Kernan,  200. 


•     AGENTS.  109 

are  cases  in  which  it  has  been  adjudged  that  he,  who  without 
authority  contracts  for  another  in  terms  which  legally  import 
the  other's  sole  undertaking,  is  himself  legally  answerable  in  an 
action  on  the  contract  itself,  (a)  Might  it  not  as  well  be  held 
that  he  who  forges  another's  name  to  an  instrument  is  party 
thereto  and  may  be  charged  as  such  in  an  action  thereon  ? 
Other  decisions  sustain  that  rule,  and  decide  that  the  remedy 
is  by  action  to  recover,  of  the  party  wrongly  assuming  to  act 
as  agent,  damages  for  the  failure  of  the  contract,  (b)  Such 
action  has  heretofore  been  framed  in  tort ;  but  it  has  been  re- 
cently decided  in  England,  (as  stated,  ante  5,)  that  the  party 
is  liable  to  an  action  on  an  implied  promise  that  he  was  au- 
thorized as  agent.  Yet  as  the  ground  of  his  liability  is  his 
wrongful  conduct,  he  is  not  liable  where  he  was  in  no  fault ; 
as  where  the  authority  which  he  once  had  was  ended  by  the 
death  of  his  principal,  of  which  he  had  no  notice,  or  by  his 
mistake  as  to  the  power  conferred  by  his  authority,  (c) 

In  the  application  of  the  foregoing  rules,  the  diversity  in  the 
adjudged  cases  is  on  the  question,  what  terms,  used  in  a  con- 
tract made  by  an  agent,  do  or  do  not  legally  import  his  sole 
undertaking,  or   that  of   the  principal ;    and   this   chiefly  in 

(a)  Dusenbury  v.  Ellis,  3  Johns.  Cas.  70.  White  v.  Skinner,  13  Johns. 
307.  Palmer  v.  Stephens,  1  Denio,  480,  and  other  iJ^ew  York  cases  there 
cited.  (But  see  5  Selden,  585,  586,  and  13  Barb.  639,  640.)  Bay  v.  Cook, 
2  Zab.  343.  Bank  of  Hamburg  t?.  Wray,  4  Strobhart,  8  7.  Byars  v.  Doore's 
Adm'r,  20  Missouri,  284. 

(6)  Jenkins  v.  Hutchinson,  13  Ad.  &  El.  N.  S.  744.  Lewis  v.  Nicholson, 
18  ib.  511.  These  cases  overruled  the  previous  English  decisions  that  one 
who  contracts  as  agent  when  he  has  no  principal,  may  be  regarded  as  himself 
the  principal,  and  personally  liable  on  the  contract.  "  I  always  thought  the 
notion,"  says  Lord  Campbell,  7  El.  &  Bl.  312,  "of  suing  the  agent  as  prin- 
cipal absurd."  See  also  Hopkins  v.  Mehaffy,  11  Serg.  &  R.  129.  Delius  v. 
Cawthorn,  2  Dev.  90.  McHenry  v.  Duffield,  7  Blackf.  41.  Potts  v.  Hender- 
son, 2  Carter,  (Ind.)  327.  Ogden  v.  Raymond,  22  Conn.  385.  Long  v.  Col- 
burn,  11  Mass.  97.  Ballou  v.  Talbot,  16  Mass.  461.  Jefts  t;.  York,  4  Cush. 
871  and  10  Cush.  395.  Moor  v.  Wilson,  6  Foster,  336.  2  Kent  Com.  (11th 
ed.)  840.  Smith  on  Merc.  Law,  (5th  ed.)  219.  2  Smith  Lead.  Cas.  (6th  Amer. 
ed.)  414. 

(c)  See  10  Mees.  &  Welsb.  9.  6  Met.  528.  10  Cush.  395,  396.  1  Amer. 
Lead.  Cas.  (4th  ed.)  637.  Story  on  Agency,  §  264  §'  seq.  See  also  Randell 
V.  Trimen,  18  C.  B,  786.     CoUen  v.  Wright,  7  El.  &  Bl.  301. 


110  LAW   OP    CONTRACTS. 

respect  to  simple  contracts.  As  to  contracts  under  seal  there 
is  great  uniformity  of  decision,  that  though  they  are,  in  terms, 
made  in  behalf  of  a  principal  whom  the  agent  names,  yet  if 
he  contracts  in  his  own  name  only,  and  affixes  his  private 
seal,  he  thereby  binds  himself  only,  (a)  So  of  contracts  in  like 
terms,  though  not  under  seal,  (b) 

But  when  a  simple  contract  is  made  by  an  agent,  in  such 
terras  and  signed  in  such  manner  as  would  bind  the  principal, 
if  it  were  under  seal,  it  does  not  bind  the  agent,  (c)  And 
this  is  now  generally  held  to  be  the  law,  which  is  to  be  ap- 
plied to  agents  of  foreign  as  well  as  of  domestic  principals, 
contrary  to  the  statement  in  Story  on  Agency,  §  268,  that  the 
agent  of  a  foreign  principal  is  ordinarily  presumed  to  be  per- 
sonally and  exclusively  liable  on  a  contract  made  for  him, 
whether  it  be  made  as  agent,  or  not.    The  present  doctrine  is, 

(a)  Appleton  v.  BInks,  5  East,  148.  Duvall  v.  Craig,  2  Wheat,  56.  Stone 
V.  Wood,  7  Cowen,  453.  Tippets  v.  Walker,  4  Mass.  595.  Damon  v.  Granby, 
2  Pick.  345.  Fullam  v.  West  Brookfield,  9  Allen,  1.  It  is  the  doctrine  of 
the  courts  of  New  York,  that  if  an  authorized  agent  executes,  in  his  own  name 
and  under  his  private  seal,  a  contract  for  the  exclusive  benefit  of  the  prin- 
cipal, and  which  is  not  required  to  be  under  seal,  he  is  not  personally  bound 
thereby,  but  that  it  may  be  treated  as  the  simple  contract  of  the  principal. 
Randall  v.  Van  Vecbten,  19  Johns.  60.  Dubois  v.  Delaware  &  Hudson 
Canal,  4  AVend.  285.  Worrall  v.  Munn,  1  Selden,  229.  Ford  v.  Williams,  3 
Kcrnan,  5  77.  Haight  v.  Sahler,  30  Barb.  218.  See  also  Bledsoe  v.  Cains, 
10  Texas,  455,  and  Crozier  v.  Carr,  11  ib.  376. 

(b)  Burrell  v.  Jones,  3  B.  &  Aid.  47.  Norton  v.  Herron,  Ky.  &  Mood.  229 
and  1  Car.  &  P.  648.  Higgins  v.  Senior,  8  Mees.  &  Welsh.  834.  Jones  v. 
Littledale,  6  Ad.  &  El.  490  and  1  Nev.  &  P.  677.  Cooke  v.  Wilson,  1  C.  B. 
N.  S.  153.  Wilson  v.  Zulueta,  14  Ad.  &  El.  N.  S.  405.  Kennedy  v.  Gou- 
veia,  3  Dowl.  &  Ryl.  503.  Tanner  v.  Christian,  4  El.  &  Bl.  591.  Parker  v. 
Winlovv,  7  ib.  942.  Simonds  v.  Heard,  28  Pick.  120.  Broom  on  Parties, 
142  §•  seq. 

(c)  Lyon  v.  Williams,  5  Gray,  557.  Lord  Galway  v.  Matthew,  1  Campb. 
403.  Green  v.  Kopke,  18  C.  B.  549.  Mahony  v.  Kekule,  14  C.  B.  39U, 
which  was  thus :  "  Contract  between  Vaclier  &  Tilly  and  M.  Mahony,"  and 
signed  in  this  manner :  "  For  Vaclier  &  Tilly,  Charles  Kekule.  M.  Ma- 
hony." In  an  action  by  Mahony  against  Kekule  for  breach  of  this  contract, 
it  was  decided  that  he  was  not  personally  liable.  If  he  had  affixed  a  seal  after 
his  signature,  it  would  have  been  duly  executed  in  the  name  of  his  principals, 
and  have  been  their  act,  if  he  was  duly  authorized  by  them.  Cases  cited 
ante,  105,  note  c. 


AGENTS.  Ill 

that  when  the  terms  of  a  contract  made  by  an  agent  are  clear, 
they  are  to  have  the  same  construction  and  legal  effect,  whether 
made  for  a  domestic  or  for  a  foreign  principal.  In  either  case, 
it  is  a  question  of  intention,  to  be  determined,  as  in  other  in- 
struments in  writing,  by  the  terms  of  the  contract.  If  the 
terms  of  such  contract  are  ambiguous,  so  that  it  is  doubtful 
to  whom  credit  was  intended  to  be  given,  the  fact  that  the 
principal  was  a  foreigner  may  be  considered  in  deciding 
whether  the  agent  is  liable,  (a) 

A  foreign  principal,  whose  goods  are  sold  by  his  agent,  has 
the  same  right  which  a  domestic  principal  has,  to  resort  to  the 
buyer  for  payment,  (b) 

As  to  most  of  the  simple  contracts  made  by  agents,  it  seems 
impracticable  to  deduce  from  the  decisions  any  single  distinct- 
ive proposition  that  will  serve  as  a  test  of  the  question 
whether  they  bind  the  principal  or  the  agent.  The  cases  are 
in  confusion,  and  apparently  in  conflict.  There  seem  to  be 
distinctions  where  the  differences,  if  any,  are  so  thin  and 
shadowy  as  to  elude  common  discernment.  They  all,  how- 
ever, assume  the  rightful  rule,  that  they  are  to  be  determined 
according  to  the  intention  of  the  parties,  which  is  to  be  ascer- 
tained from  the  terms  of  the  contract  in  suit. 

Instead  of  a  useless  attempt  to  collect  and  compare  the 
multiplied  decisions  on  this  subject,  reference  is  made  to  the 
Treatises  on  Agency,  and  to  Eastern  Railroad  Co.  v.  Benedict, 
5  Gray,  561,  Bank  of  British  North  America  v.  Hooper,  ib. 
567,  and  Barlow  v.  Congregational  Society  in  Lee,  8  Allen, 
460,  which  cases  contain  a  more  instructive  discussion  of  this 
matter  than  has  been  found  elsewhere.  And  it  will  there  ap- 
pear that  contracts  by  or  with  cashiers  of  banks  and  treasurers 

(a)  Mahony  v.  Kekule,  14  C.  B.  398.  Green  v.  Kopke,  18  C.  B.  557. 
Pennell  v.  Alexander,  3  EI.  &  Bl.  304.  Oelrieks  v.  Ford,  23  Howard,  49. 
Kirkpatrick  v.  Stainer,  22  Wend.  244.  Bray  v.  Kettell,  1  Allen,  80.  2  Kent 
Com.  (6th  ed.)  631.  3  Robinson's  Practice,  57  c^-  .se^.  1  Amer.  Lead.  Cas. 
(4th  ed.)  639,  640.  But  the  courts  of  Maine  (22  Maine,  138  and  33  ib.  112,) 
and  of  Louisiana  (1  Rob.  149,)  recognize  the  doctrine  advanced  in  Story  on 
Agency. 

(b)  Hardy  v.  Fairbanks,  1  James  (Nov.  Scotia,)  432.  Barry  v.  Page,  10 
Gray,  398.     By  Cowen,  J.,  3  Hill,  73. 


112  LAW   OP   CONTEACTS. 

of  corporations,  made  in  their  names  as  such  officers,  are  gen- 
erally regarded  as  contracts  by  or  with  the  banks  or  corpo- 
rations of  which  they  are  officers.  In  the  Massachusetts 
decisions,  if  the  case  of  Mann  v.  Chandler,  9  Mass.  335,  be 
excepted,  it  is  believed  that  there  is  no  conflict. 

A  public  agent  is  not  personally  liable  on  a  contract  made 
by  him  in  behalf  of  the  government,  unless  he  expressly 
pledges  his  own  responsibility.  The  reason  for  a  different 
construction  of  similar  contracts,  when  used  by  a  private  and 
when  used  by  a  public  agent,  is  stated  by  Parsons,  C.  J.,  in  4 
Mass.  597  ;  namely,  that  "  the  faith  and  ability  of  the  state,  in 
discharging  all  contracts  made  by  its  agents  in  its  behalf, 
cannot,  in  a  court  of  justice,  be  drawn  into  question."  (a) 

A  ratification  of  an  act  done  by  one  who  assumes  to  be 
an  agent  is  tantamount  to  a  prior  authority.  A  parol  con- 
tract may  be  ratified  by  an  express  parol  recognition  or  by 
conduct  of  the  principal  which  implies  acquiescence,  or  even 
by  his  silence.  The  conduct  of  the  principal  may  estop  him 
to  deny  the  agent's  authority,  (b) 

"  It  is  said  to  be  a  rule,  on  the  ground  that  a  ratification 
operates  as  equivalent  to  a  previous  authority,  that  where  the 
adoption  of  any  particular  form  or  mode  is  necessary  to  con- 
fer the  authority  in  the  first  instance,  there  can  be  no  valid 
ratification  except  in  the  same  manner ;  and  thus,  as  an  au- 
thority to  execute  deeds  must  be  under  seal,  there  cannot  be 
a  parol  ratification  of  a  deed  executed  without  authority  un- 
der seal.     This  is  certainly  applicable  to  express  ratifications, 

(a)  See  Macbeath  i'.  Haldimand,  1  T.  R.  172.  Unwin  v.  Wolseley,  ib. 
674.  Myrtle  v.  Beaver,  1  East,  135.  Rice  v.  Chute,  ib.  579.  Hodgson  v. 
Dexter,  1  Cranch,  345.  Parks  v.  Ross,  11  Howard,  374.  Tucker  v.  Justices, 
13  Ired.  434.  Jones  v.  Le  Tombe,  3  Dallas,  384.  Brown  v.  Austin,  1  Mass. 
208.  Copes  V.  Matthews,  10  Smedes  &  Marsh.  398.  Blair  v.  Robinson,  3  Kerr, 
(N.  B.)  487.  Ryan  v.  Terrington,  Newfoundland  Rep.  29.  Stanly's  Ex'or 
V.  Hawkins,  Martin,  (N.  C.)  55.  Chit,  on  Con.  (10th  Amer.  ed.)  303-305. 
Story  on  Agency,  (6th  ed.)  c.  xi.  By  statutes  in  Massachusetts  and  Maine,  the 
wardens  of  the  state  i)risons  are  to  be  held  personally  liable  on  certain  contracts 
made  by  them  in  behalf  of  the  public.     11  Met.  138,  139,  220.     3  Pick.  17. 

(b)  Paley  on  Agency,  (4th  Amer.  ed.)  171-174.  Story  on  Agency,  §§  239- 
260. 


PAETNERS.  113 

and  no  doubt  also  to  ratifications  by  such  acts  of  recognition 
and  acquiescence  as  operate  merely  as  evidence  of  assent ; 
but  it  can  hardly  be  questionable  that  an  act  which  operates 
as  an  estoppel  in  pais,  such  as  the  receiving  and  retaining  of 
the  benefit  of  a  contract  under  seal,  would  confirm  a  contract 
made  by  an  agent  without  legal  authority."  I  Amer.  Lead. 
Cas.  (4th  ed.)  595.  See  also  Mclntyre  v.  Parks,  11  Gray,  102. 
As  to  ratification  of  one  partner's  sealed  contract  by  his 
copartner,  see  j^ost.  124. 

12.  Partners. 

Partnership  (a)  is  usually  defined  as  a  contract  between 
two  or  more  persons  to  place  their  money,  effects,  labor,  and 
skill  in  commerce  or  business  and  to  divide  the  profit  and  loss 
in  certain  proportions.  This,  says  Chief  Justice  Eyre,  (2  11. 
Bl.  246)  is  a  good  definition  as  between  the  parties  them- 
selves, but  not  with  respect  to  the  world  at  large.  For  there 
are  cases  in  which  persons,  who  are  not  members  of  a  firm, 
according  to  an  agreement  of  partnership,  are  liable  to  the 
world  at  large  for  the  debts  of  the  firm,  as  if  they  were  actual 
members. 

Thus,  a  person  who  holds  himself  out  as  a  partner,  repre- 
senting himself  to  be  such,  may  be  answerable  as  such.  In 
a  suit  against  such  person  it  has  been  decided  that  the  law  is 
this  :  The  defendant  is  liable,  if  the  debt  was  contracted 
upon  his  representation  of  himself  to  the  plaintiff"  as  a  partner, 
or  upon  such  a  public  representation  of  himself  in  that  char- 
acter, as  to  lead  the  jury  to  conclude  that  the  plaintiff",  know- 
ing of  that  representation,  and  believing  the  defendant  to  be 
a  partner,  gave  him  credit  under  that  belief,  {b)  The  holding 
one's  self  out  to  the   world   as  a   partner,  as   contradistin- 

(a)  The  law  as  to  Joint  Stock  Companies  is  not  here  considered.  See  the 
works  of  Wordsworth  and  of  Thring  on  such  companies.  Nor  the  law  of 
limited  partnerships. 

(6)  Ford  V.  Whitmarsh,  Hurlst.  &  Walms.  53.  See  also  Dickinson  v.  Val- 
py,  Lloyd  &  Welsh.  6,  5  Man.  &  Ryl.  126  and  10  Barn.  &  Cres.  128.  Fitch 
V.  Harrington,  13  Gray,  469,  475,  Watson  on  Fart.  (Amer.  ed.)  5.  Wood 
V.  Pennell,  51  Maine,  52.  Hicks  v.  Cram,  17  Verm.  449.  Bowie  v.  Maddox, 
29  Georgia,  285.     Davis  v.  White,  1  Houston,  232. 


114  LAW   OF   CONTRACTS. 

guished  from  the  actual  relation  of  partnership,  imports  at 
least  the  voluntary  act  of  the  party  so  holding  himself  out. 
It  impHes  the  lending  of  his  name  to  the  partnership,  and  is 
incompatible  with  the  want  of  knowledge  that  his  name  has 
been  so  used,  (a)  As  to  the  facts  which  will  or  will  not  show 
such  voluntary  act,  see  Gary  on  Part.  18, 19.  Potter  v.  Greene, 
9  Gray,  309.     Currier  v.  Silloway,  1  Allen,  19. 

And  if  there  be  an  agreement  between  those  who  are  al- 
ready partners  and  a  third  person,  that  he 'shall  participate  in 
the  profits  of  the  firm,  as  profits,  such  person  is  held  liable  for 
the  debts  of  the  firm,  or  if  two  persons  agree  that  each  shall 
have  a  share  of  the  profits  of  certain  business  which  they 
transact  separately,  they  become  partners,  and  each  is  liable 
for  the  debts  of  both,  which  are  incurred  in  such  business ;  on 
the  ground  that  every  one  who  has  a  share  of  the  profits 
ought  also  to  bear  his  share  of  the  loss,  as  he  takes  a  part  of 
that  fund  on  which  creditors  rely  for  their  payment,  {b)  "  The 
ground  as  to  third  persons,"  said  Lord  Eldon,  "  is  this  :  It  is 
already  settled,  that  if  a  man  stipulates  that  as  the  reward  of 
his  labor  he  shall  have,  not  a  specific  interest  in  the  business, 
but  a  given  sum  of  money,  even  in  proportion  to  a  given 
quantum  of  the  profits,  that  will  not  make  him  a  partner;  but 
if  he  agrees  for  a  part  of  the  profits,  as  such,  giving  him  a 
right  to  an  account,  though  having  no  property  in  the  capital, 
he  is,  as  to  third  persons,  a  partner,  and  in  a  question  with 
third  persons  no  stipulation  can  protect  him  from  loss."  Ex 
parte  Hamper,  17  Ves.  412.  And  such  is  the  present  ac- 
knowledged law.  Story  on  Part.  §§  35  Sj-  seq.  Bisset  on  Part. 
13  t^  seq.  and   the  other   treatises   on    partnership.     Perry  v. 

(«)  By  Tindal,  C.  J.  in  Fox  v.  Clifton,  4  Moore  &  Payne,  713  and  6  Bing. 
794. 

(6)  Grace  v.  Smith,  2  W.  Bl.  1000.  Waugh  v.  Carver,  2  H.  Bl.  235. 
Cheap  V.  Cramond,  4  B.  &  Aid.  663.  Hesketh  v.  Blanchard,  4  East,  144. 
Pott  V.  Eyton,  3  C.  B.  32.  Holt  v.  Kernodle,  1  Ired.  202.  Dob  v.  Halsey, 
16  Johns.  40.  Purviance  v.  M'Clintec,  6  Serg.  &  R.  259.  Champion  v. 
Bostwick,  18  Wend.  175.  Olmstead  v.  Hill,  2  Pike,  346.  Young  t;.  Smith, 
25  Missouri,  344.  3  Kent  Com.  (11th  ed.)  25.  Chitty  on  Con.  (10th  Amer. 
ed.)  260  »f  seq.  See  an  able  criticism  of  the  first  two  of  these  cases  in  1 
Liiidlcy  on  Partnership  (Amer.  ed.)  93-96,  and  a  "hope"  expressed  by  Mr. 
Lindley,  that  this  rule  "  will  ere  long  cease  to  exist."  And  see  3  Best  &  Smith, 
847. 


PARTNERS.  115 

Butt,  14  Georgia,  699.  See  further,  that  a  stipulation  in 
articles  of  partnership,  exempting  one  of  the  partners  from 
losses,  will  not  affect  his  liability  to  the  creditors  of  the  firm. 
2  H.  Bl.  246.  3  Mees.  &  Welsh.  361.  Story  on  Part.  §§  60, 
61.  Gow  on  Part.  (1st  Amer.  ed.)  18.  1  Montagu  on  Part. 
5.     Watson  on  Part.  (Amer.  ed.)  13  Sf  seq. 

Another  mode  in  which  one,  who  is  not  a  partner  under 
the  articles  of  partnership,  may  become  liable  for  the  debts  of 
the  firm,  is  by  an  agreement  with  one  of  the  members  that 
he  shall  participate  in  that  member's  share  of  the  profits  of 
the  firm,  [a) 

Those  only  who  are  by  law  permitted  to  make  other  con- 
tracts can  make  a  contract  of  partnership.  Hence  an  alien 
enemy  (unless  he  resides  here  under  the  license  and  protec- 
tion of  the  government)  cannot  be  a  partner,  {b)  Nor  a  mar- 
ried woman,  except  when  the  law  enables  her  to  act  as  a  feme 
sole ;  and  the  statutes  of  Massachusetts  do  not  enable  her  to 
be  a  partner  in  a  firm  of  which  her  husband  is  a  member. 
Lord  V.  Parker,  3  Allen,  127.  In  1  Lindley  on  Part.  (Amer. 
ed.)  118,  it  is  said,  on  the  authority  of  the  cases  cited  ante,  80, 
note  a.,  that  by  the  law  of  England  a  lunatic  is  capable  of 
being  a  partner.  An  infant  may  be  a  partner  under  a 
contract  voidable  like  his  other  contracts ;  and  his  rights 
and  liabilities  under  such  contract  are  stated  ante,  63,  64. 
Under  the  English  statute,  57  Geo.  III.  c.  99,  §  3,  which  en- 
acted that  no  spiritual  person  having  any  dignity,  prebend, 

(a)  Fitch  V.  Harrington,  13  Gray,  468.  In  this  case  the  defendant  rehed 
on  the  statement  in  Colly,  on  Part.  (3d  Amer.  ed.)  §  194,  that  though  a  stran- 
ger cannot  be  introduced  as  a  partner  against  the  will  of  any  of  the  copart- 
ners, "  yet  no  partner  is  precluded  from  entering  into  a  sub-partnership  with  a 
stranger.  In  such  case  the  stranger  may  share  the  profits  of  the  particular 
partner  with  whom  he  contracts,  and  not  being  engaged  in  the  general  part- 
nership, will  of  course  not  be  liable  for  their  debts."  This  was  decided  not  to 
be  sustained  by  the  cases  cited  by  Mr.  Collyer,  and  not  to  be  the  law.  In  1 
Lindley  on  Part.  (Amer.  ed.)  101,  102,  the  law  is  stated  as  in  Collyer,  but 
with  no  additional  citations  which  support  it.  See  3  Ross's  Lead.  Cas.  (Amer. 
ed.)  480-483.    See  12  Allen,  544. 

(h)  Bisset  on  Part.  2,  3.  Story  on  Part.  §  9.  Griswold  v.  Waddington, 
15  Johns.  57  and  16  Johns.  438. 


116  LAW   OF    CONTRACTS. 

benefice,  lectureship,  &c.,  should  engage  in  or  carry  on  any 
trade  or  dealing  for  gain  or  profit,  it  was  decided  that  such 
spiritual  person  could  not  lawfully  be  a  member  of  a  partner- 
ship formed  for  the  purpose  of  carrying  on  the  business  of 
bankers,  (a)  A  manufacturing  corporation  established  under 
the  laws  of  Massachusetts  cannot  form  a  partnership  with  an 
individual,  (b)  and  among  the  reasons  given  are  such  as 
would  seem  to  apply  to  all  corporations.  But  see  1  Lindley 
on  Part.  (Amer.  ed.)  119.  Two  or  more  corporations  cannot 
enter  into  partnership,  unless  authorized  by  express  grant  or 
necessary  implication,  (c) 

A  contract  of  partnership  in  business  which  is  contrary  to 
law  confers  no  right  on  either  party  against  the  other,  but  is 
void.  And  this  is  so  not  only  when  the  business  is  contrary 
to  the  provisions  of  statutes,  but  also  when  it  violates  mo- 
rality, religion,  or  public  policy ;  as  the  business  of  pawn- 
brokers, or  of  acting  plays,  contrary  to  a  statute ;  (d)  or  for 
smuggling  ;  (e)  or  for  unlawful  gaming;  (/)  or  for  the  fraudu- 
lent purpose  of  hindering  or  delaying  the  creditors  of  one  of 
the  parties  in  the  collection  of  their  debts ;  (g-)  or  for  the  sup- 
port of  a  house  used  for  any  unlawful  business  or  purposes,  (h) 
But  third  persons  who  are  not  aware  of  the  unlawfulness  of  a 
partnership  have  the  same  rights  which  they  have  against  law- 
ful partners.  Gary  on  Part.  (Amer.  ed.)  8.  And  as  to  the  par- 
ties themselves,  the  supreme  court  of  the  United  States  (Catron, 
J.  dissenting)  have  decided  that  after  a  partnership,  which 
was  against  public  policy,  has  been  carried  out,  and  money 

(«)  Hall  V.  Franklin,  3  Mees.  &  Welsb.  259.  See  Lewis  v.  Bright,  4  El. 
&  Bl.  917.     Tench  v.  Roberts,  Madd.  &  Geld.  145,  note. 

(i)  Whittenton  Mills  v.  Upton,  10  Gray,  582.     See  10  Allen,  456. 

(c)  Anrjell  &  Ames  on  Corp.  §  272,  citing  N.  York  &  Sharon  Canal  Co.  v. 
Fulton  Bank,  7  Wend.  412,  and  Pearce  v.  Madison  &  Indianapolis  Railroad 
Co.  21  Howard,  441.     See  Grant  on  Corp.  8.     14  Barb.  471. 

(d)  Lewis  v.  Armstrong,  3  Myl.  &  Keen,  64,  4  Moore  &  Scott,  1,  and  2 
Crompt.  &  Mees.  274.  Ewing  v.  Osbaldiston,  2  Myl.  &  Craig,  53.  De  Beg- 
nis  V.  Aruiistead,  10  Bing.  107  and  3  Moore  &  Scott,  511. 

(e)  Biggs  V.  Lawrence,  3  T.  R.  454.     Stark  on  Part.  48. 
(./')  Watson  V.  Fletcher,  7  Grattan,l. 

((f)  McPherson  v.  Pemberton,  1  Jones,  (N.  C)  378. 
(/()   Story  on  Part.  §  6. 


* 


PARTNERS.  117 

contributed  by  one  of  the  partners  has  passed  into  other  forms, 
and  the  results  of  the  intended  operation  have  been  com- 
pleted, a  partner,  in  whose  hands  the  profits  are,  cannot  refuse 
to  account  for  and  divide  them  on  the  ground  of  the  unlawful 
character  of  the  original  contract,  (a) 

Though  it  is  essential  to  a  partnership  that  there  should  be 
an  agreement  to  share  profits,  it  is  not  essential  to  a  partner- 
ship inter  se  that  there  should  be  an  agreement  to  share  losses. 
Nor  is  it  necessary  that  there  should  be  any  joint  capital  or 
stock.  Persons  laboring  together  for  a  common  object,  for 
the  sake  of  gain  and  of  dividing  it,  are  partners,  although 
each  labors  with  his  own  separate  means.  (&) 

A  partnership  between  the  parties  themselves  exists  only 
when  such  is  their  actual  intention.  A  mere  participation  in 
the  profits  will  not  make  the  parties  partners  inter  se,  whatever 
it  may  do  as  to  third  persons.  By  Story,  J.,  in  Hazard  v.  Haz- 
ard, 1  Story  R.  373.  In  that  case,  certain  business  was  trans- 
acted by  A.  and  B.,  and  B.  was  to  devote  his  time  to  the  man- 
agement of  that  business  and  to  be  allowed  for  his  services  a 
certain  part  of  the  profits  thereof  as  the  sole  reward  of  his  ser- 
vices. It  was  decided  that  there  was  not  a  partnership.  So 
when  A.  &  B.,  owners  of  a  woollen  factory,  agreed  with  C.  & 
D.  that  C.  &  D.  should  furnish  wool  for  the  supply  of  said 
factory,  and  that  A.  &  B.  should  manufacture  the  wool,  and 
that  the  net  proceeds  of  the  cloths  manufactured  should  be 
divided,  in  agreed  proportions  between  the  four,  it  was  held 
tliat  this  agreement  did  not  constitute  a  partnership.  Loomis 
V.  Marshall,  12  Conn.  69.  Numerous  other  decisions,  in 
which  a  like  doctrine  has  been  applied,  are  cited  in  the  mar- 
gin, (c) 

(a)  Brooks  D.  IMartin,  2  Wallace,  70.  See  post.  c.  iv,  on  the  subject  of  Un- 
lawful Contracts. 

(6)  Fromont  v.  Coupland,  9  Moore,  319  and  2  Binjr.  170.  French  v. 
Styring,  2  C.  B.  N.  S.  357.  Wilson  v.  Whitehead,  10  Mees.  &  Welsh.  503. 
Brown  V.  Cook,  3  N.  Hamp.  64.  Juho  v.  Ingalls,  1  Allen,  41.  Bulfinch  v. 
Winchenbach,  3  Allen,  161.  Pierson  v.  Steinmyer,  4  Richardson,  309. 
1  Lindley  on  Part.  (Amer.  ed.)  75,  76.     Colly,  on  Part.  §§  16,  17. 

(c)  Turner  v.  Bissell,  14  Pick.  192.    Uenny  v.  Cabot,  6  Met  82.    Holmes  v. 


^ 

.^' 


118  LAW   OP  CONTEACTS. 

Each  partner  has  implied  authority  to  bind  the  firm  by 
simple  contracts,  made  in  their  names,  relating  to  the  partner- 
ship, and  within  its  general  scope  and  ordinarily  incident  to 
its  business  ;  viz.  to  draw  or  accept  bills  of  exchange,  make 
or  indorse  promissory  notes,  make  purchases,  sales,  pledges, 
and  mortgages  of  goods,  and  compromise  claims  ;  although 
this  may  be  contrary  to  express  private  arrangement  among 
themselves,  (a)  If,  however,  the  party  to  whom  a  single 
partner  makes  the  promise  of  the  firm  has  notice  that  the 
partner  is  violating  a  stipulation  between  the  members  of  the 
firm,  he  cannot  hold  the  firm  on  such  promises. 

It  is  only  in  business  which  relates  to  the  partnership  that 
a  third  party,  who  takes  a  contract  from  one  partner,  in  the 
name  of  the  firm,  has  a  right  to  rely  on  the  credit  of  the 
partnership  funds.  Therefore  if  one  partner,  without  the  con- 
sent of  the  others,  makes  a  contract  in  the  name  of  the  firm, 
for  his  private  benefit,  or  out  of  the  course  of  the  partnership 
business,  it  will  not  bind  the  firm,  if  the  other  contracting 
party  has  notice  of  the  single  partner's  want  of  authority;  as 
when  one  partner  gives  the  note  of  the  firm  for  money  bor- 
rowed for  his  private  use,  or  gives  such  note  in  payment  of  his 
private  debt,  the  holder  of  the  note,  if  he  had  notice,  cannot 
collect  it  of  the  firm,  (b)  And  it  is  not  necessary  that  express 
notice  or  knowledge  should  be  fixed  on  the  holder  of  such 
note,  or  of  the  class  of  notes  next  to  be  mentioned,  or  on  the 

Old  Colony  Railroad  Corp.  5  Gray,  58.  Perrine  v.  Hankinson,  6  Halst.  181. 
Vanderburgh  v.  Hull,  20  Wend.  70.  Salter  v.  Ham,  31  N.  Y.  Rep.  321. 
Faucett  v.  Osborn,  32  Illinois,  412.  Potter  v.  Moses,  1  R.  I.  430.  Clement 
V.  HadloL-k,  13  N.  Hamp.  185.  Atherton  v.  Tilton,  44  N.  Hamp.  456.  Mil- 
ler V.  Bartlet,  15  Serg.  &  R.  137.  Smith  v.  Perry,  5  Butcher,  74.  Bowyer 
V.  Anderson,  2  Leigh,  550.  Polk  v.  Buchanan,  5  Sneed,  721.  Smith's  E.x'or 
V.  Garth,  32  Alab.  368.  Brundrcd  v.  Muzzy,  1  Butcher,  268.  Benson  v. 
Ketchum,  14  Maryl.  331.  Bartlett  v.  Jones,  2  Strobhart,  471.  Macy  v. 
Combs,  15  Ind.  469. 

(n)  3  Kent  Com.  (11th  ed.)  43  .V  seq.  Bisset  on  Part.  (Amer.  ed.)  40  ^ 
seq.,  and  other  treatises  on  partnership. 

(6)  lb.  supra.  Gallway  v.  Mathew,  10  East,  264.  Vice  v.  Fleming,  1  Y. 
&Jerv.  227.  Willis  y.  By  son,  1  Stark.  R.  164.  Rooth  e.  Quin,  7  Price, 
391.     Baxter  v.  Clark,  4  Ired.  127.     Hayward  ?•.  French,  12  Cray.  457 


PARTNERS.  119 

person  contracting  with  the  single  partner.  Circumstances 
from  which  his  knowledge  may  be  inferred,  or  which  ought 
to  have  put  him  on  inquiry,  are  sufficient  to  exonerate  the 
firm ;  (a)  and  by  a  recent  decision  in  England,  Leverson  v. 
Lane,  13  C.  B.'n.  S.  278,  it  is  adjudged,  as  it  generally  has 
been  in  this  country,  that  the  burden  of  proof  is  on  him  to 
to  show  that  such  note  was  given  with  the  concurrence  of  the 
other  partners. 

What  is  within  the  scope  of  partnership  business  depends 
on  the  nature  of  that  business.  It  is  within  the  scope  of  a 
trading  partnership  (as  just  stated)  to  make  contracts  respect- 
ing the  property  in  which  it  deals ;  as  to  give  notes,  &c..  in 
payment  thereof.  But  it  is  not  within  its  scope  to  guaranty 
others'  debts  or  become  surety  for  others,  or  to  make  or  indorse 
negotiable  paper  for  the  accommodation  of  others.  The  same 
law  is  applied  to  contracts  of  this  kind,  which  is  applied  to 
those  last  mentioned,  (b) 

It  is  held  that  one  partner  has  implied  authority  to  mort- 
gage the  whole  personal  property  of  the  firm  to  secure  cred- 
itors of  the  firm  (c)  or  to  sell  and  transfer  the  whole  to  a 
creditor  of  the  firm,  in  payment  of  a  debt  {d)  or  to  sell  the 
whole,  to  any  purchaser,  at  a  single  sale,  (e)  And  there  are 
decisions  that  he  may  assign  the  whole  for  payment  of  the 

(a)  Rogers  v.  Batchelor,  12  Peters,  221.  Frankland  y.  McGustj',  1  Knapp, 
305,  306.  Dob  v.  Halsey,  16  Johns.  34.  Chazournes  v.  Edwards,  3  Pick.  5. 
Miller  v.  Hines,  15  Georgia,  197. 

(b)  Theobald  on  Prin.  &  Surety,  §  41.  Duncan  v.  Lowndes,  3  Campb. 
438.  Lanier  v.  McCabe,  2  Florida,  32.  Bank  of  Commerce  v.  Selden, 
3  Min.  155.  Andrews  v.  Planters'  Bank,  7  Smedes  &  Marsh.  192.  Bank 
of  Tennessee  v.  SafFarrans,  3  Humph.  597.  Baker  v.  Bandy,  2  Head,  197. 
Mauldin  v.  Branch  Bank,  2  Alab.  502.  Mayberry  v.  Bainton,  2  Harrington, 
24.  Bowman  v.  Cecil  Bank,  3  Grant,  33.  Gansevoort  v.  Williams,  14 
Wend.  133.  Rollins  v.  Stevens,  31  Maine,  454.  Sweetser  v.  French,  2  Cash. 
309.     Brettel  v.  Williams,  4  Exch.  623.     Fell  on  Guaranties,  18  S)-  seq. 

(c)  Tapley  v.  Butterfield,  1  Met.  515.  3  Kent  Com.  (11th  ed.)  48. 
Trower  on  Debtor  and  Creditor,  401.     13  Iowa,  474. 

(d)  Mabbett  v.  White,  2  Kernan,  442. 

(e)  Arnold  c.  Brown,  24  Pick.  89.  Whitton  v.  Smith,  1  Freem.  Ch. 
Rep.  (Miss.)  231.  Montjoys  v.  Holden,  Litt.  Sel.  Cas.  447.  Colly,  on  Part. 
§394. 


120  LAW   OF   CONTRACTS.  , 

debts  of  the  firm ;  (a)  but  there  are  also  decisions  to  the  con- 
trary, (b)  There  are  also  cases  in  which  a  distinction  is 
made  between  assignments  in  which  certain  creditors  are  pre- 
ferred and  those  which  provide  for  equal  distribution  to  all 
creditors,  and  between  assignments  made  against  the  objec- 
tion of  the  other  partners,  and  those  that  are  made  when  there 
is  a  mere  want  of  consent  by  the  others,  (c) 

One  partner  has  authority  to  compound  and  compromise  a 
debt,  whether  due  to  or  by  the  firm,  (d) 

When  an  insurance  company  constitutes  a  firm  its  agents 
to  make  contracts  of  insurance,  one  member  of  the  firm  may 
make  such  contracts  ;  it  being  held  that  his  act  in  that  partic- 
ular relation,  like  his  acts  in  the  management  of  the  general 
business  of  the  partnership,  is  in  behalf  of  all  and  with  the 
powers  of  all.  (e) 

It  is  the  established  law  in  England,  and  is  held  by  several 
of  the  courts  in  this  country,  that  one  member  of  a  trading 
firm  has  not  implied  authority  to  bind  the  others  by  submis- 
sion of  matters  of  the  firm  to  arbitration ;  such  submission 
being  no  part  of  the  ordinary  business  of  such  firm  ;  (/)  nor 

(a)  Harrison  v.  Sterry,  5  Cranch,  289.  Anderson  v.  Tompkins,  1  Brock. 
456,  M'CuUough  v.  Sommerville,  8  Leigh,  415,  431.  Deckard  v.  Case,  5 
Watts,  22.  Hennesy  v.  Western  Bank,  6  Watts  &  Serg.  300.  Robinson  v. 
Crowder,  4  M'Cord,  519.  Lasell  v.  Tucker,  5  Sneed,  36.  Egberts  v.  Wood, 
3  Paige,  517.     Sweetzer  v.  Mead,  5  Mich.  107.     1  Handy,  94. 

(b)  Kirby  v.  IngersoU,  1  Doug.  (Mich.)  477.  Hughes  v.  Ellison,  5  Mis- 
souri, 463.     Dickinson  v.  Legare,  1  Desaus.  537. 

(c)  Hitchcock  v.  St.  John,  Hoffman,  511.  Havens  v.  Hussey,  5  Paige,  30. 
Mills  V.  Argall,  6  ib.  582.  Deming  v.  Colt,  3  Sandf.  284.  Kemp  v.  Carnley, 
3  Duer,  1.  Dana  v.  Lull,  1 7  Verm.  390.  Bull  v.  Harris,  18  B.  Monroe,  195. 
See  further.  Chit,  on  Con.  (10th  Amer.  ed.)  274,  278,  Story  on  Part.  §  101, 
Collyer  on  Part.  §§  394,  395,  and  notes  in  each  of  those  books, 

(d)  Doremus  v.  M'Cormick,  7  Gill,  49,  65.  Cunningham  v.  Littlcfield,  1 
Edw.  Ch.  104.  Raymond  v.  McMackin,  4  Allen,  (N.  B.)  524.  Story  on 
Part.  §  115. 

(e)  Kennebec  Co.  v.  Augusta  Ins.  &  Banking  Co.,  6  Gray,  204,  207. 

(/)  Stead  V.  Salt,  3  Bing.  101  and  10  Moore,  389.  Adams  v.  Bankart, 
1  Crorapt.  Mecs.  &  Rose.  681  and  5  Tyrw.  425.  Karthaus  v.  Ferrer,  1  Pe- 
ters, 222.  McBridc  v.  Hagan,  1  Wend.  326.  Buchoz  v.  Grandjean,  1  Mich. 
867.  Jones  v.  Bailey,  5  Cal.  345.  Contra  in  Kentucky,  Ohio,  and  Penn- 
sylvania.    3  Monroe,  435,436.     Wright,  420.     12  Serg.  &  R.  243. 


PARTNERS.  121 

to  confess  judgment  or  consent  to  an  order  for  judgment, 
or  cognovit  actionem,  in  an  action  against  the  firm,  [a] 

Though  the  rights  and  responsibilities  of  other  partnerships 
attach  to  a  partnership  between  attorneys  at  law,  {b)  yet  it  is 
held  in  England  that  it  is  not  mthin  the  scope  of  the  ordinary 
business  of  an  attorney  to  receive  money  from  a  client  for  the 
general  purpose  of  investment,  and  that  a  receipt  for  such 
purpose  by  one  partner,  without  authority  from  the  copartner, 
does  not  render  the  firm  liable  to  account  for  the  money  ;  such 
a  transaction  being  part  of  the  business  of  a  scrivener,  and  at- 
torneys, as  such,  not  necessarily  being  scriveners.  But  the  re- 
ceipt of  money  by  one  partner,  for  the  purpose  of  its  being 
invested  in  a  particular  security,  is  within  the  ordinary  business 
of  an  attorney,  and  the  firm  are  liable  to  account  for  it.  (c) 
It  is  not  within  the  scope  and  object  of  such  partnership  to 
borrow  money  on  the  credit  and  in  the  name  of  the  firm ;  {d) 
nor  to  give  promissory  notes  for  the  debts  of  the  firm ;  (e) 
nor  to  guaranty  payment  of  a  debt  due  by  a  client,  on  the 
creditor's  discharging  the  client  from  custody.  (/)  Where 
persons  were  partners,  as  railway  contractors,  it  was  held  that 
one  of  the  partners  had  not  authority  to  guaranty,  in  the 
name  of  the  firm,  payment  for  coals  to  be  furnished  to  those 
with  whom  the  firm  had  a  contract  for  making  bricks ;  there 
being  no  evidence  that  the  guaranty  "was  necessary  for  car- 
rying into  effect  the  contract  of  the  firm,  {g)  One  member 
of  a  partnership  between  physicians  cannot  bind  the  firm  by 

(a)  Hambridge  v.  De  la  Crouee,  3  C.  B.  742.  Morgan  i\  Richardson,  16 
Missouri,  409.  Remington  v.  Cummings,  5  Wis.  138.  Shedd  v.  Bankof  Brat- 
tleborough,  32  Verm.  710.  Barlow  y.  Reno,  1  Blackf.  252.  Hull  v.  Garner, 
31  Miss.  145.  Crane  v.  French,  1  Wend.  313.  Binney  v.  Le  Gal,  19  Barb. 
692. 

(6)  Warner  v.  Griswold,  8  Wend.  666.     Smith  v.  Hill,  8  English,  173. 

(c)  Harman  v.  Johnson,  2  El.  &  Bl.  61,  overruling  the  instructions  given 
at  nisi  prius,  3  Car.  &  Kirw.  272.     And  See  Sims  v.  Brutton,  5  Exch.  802. 

(d)  Breckinridge  v.  Shrieve,  4  Dana,  378,  379. 

(e)  Hedley  v.  Bainbridge,  3  Ad.  &  El.  N.  S.  316  and  2  Gale  &  Dav.  483. 
Levy  V.  Pyne,  Car.  &  Marshm.  453. 

(/)  Hasleham  v.  Young,  5  Ad.  &  El.  N.  S.  833  and  Dav.  &  Meriv. 
700. 

{g)  Brettel  v.  Williams,  4  Exch.  623, 


122  LAW  OP   CONTRACTS. 

a  note  in  their  names,  for  the  purpose  of  raising  money,  (a) 
And  the  same  rule  is  applied  to  other  partnerships  which  are 
not  formed  for  the  purpose  of  carrying  on  trade  ;  to  wit,  part- 
nerships in  farming ;  22  Howard,  256,  10  Barn.  &  Cres.  138, 
139,  by  Littledale,  J. ;  in  tavern-keeping  ;  3  Alab.  175 ;  or  in 
mining ;  5  Man.  &  Ryl.  126  and  10  Barn.  &  Cres.  128 ;  or 
for  establishing  and  putting  in  operation  a  steam  saw-mill ; 
2  Florida,  32,  unless  a  jury  find  it  to  be  also  a  trading  firm. 
22  Howard,  sujyra. 

In  Vermont  one  partner  may  employ  an  attorney  to  appear 
in  a  suit  against  the  firm,  and  his  appearance  is  binding  and 
conclusive  upon  the  other  partners.  Bennett  v.  Stickney,  17 
Verm.  531.  Contra  in  South  Carolina.  Haslet  v.  Street,  2 
McCord,  310.     See  Tripp- v.  Vincent,  8  Paige,  176. 

There  are  decisions  that  one  partner  is  bound  individually 
by  a  contract,  made  by  him  in  the  name  of  the  firm,  which 
does  not  bind  the  other  partners  ;  as  in  cases  where,  without 
the  consent  of  the  other  partners,  he  undertakes  to  submit 
matters  of  the  firm  to  arbitration ;  (b)  or  to  execute  a  sealed 
instrument ;  (c)  or  to  confess  judgment  ;(c?)  or  to  give  a  note, 
&c.,  after  dissolution  of  the  partnership,  (e)  or  where  he  prom- 
ises in  the  name  of  the  firm  to  pay  that  for  which  he  and  not 
the  firm  is  liable.  (/) 

The  form  in  which  one  partner  can  bind  the  firm  is  said  by 
Baron  Alderson  to  be  "  in  the  name  of  the  partnership  and  in 
that  only ; "  and  it  was  decided  that  where  two  persons  carried 
on  business  in  the  name  of  J.  B.  one  of  them  was  not  liable 

(n)  Crostliwait  v.  Ross,  1  Humph.  23. 

(h)  McBride  v.  Hagan,  1  Wend.  326.  Armstrong  v.  Robinson,  5  Gill  & 
Johns.  412.     Lee  v.  Onstott,  1  Pike,  206.     Jones  v.  Bailey,  5  Cal.  345. 

(c)  Williams  v.  Hodgson,  2  Har.  &  Johns.  474.  Pierce  v.  Cameron,  7 
Richardson,  114.  Story  on  Part.  §  119.  And  see  Bowker  v.  Burdekin,  11 
Mees.  &  Welsh.  128. 

(d)  York  Bank's  Appeal,  36  Penn.  State  Rep.  458. 

(e)  Fowle  V.  Harrington,  1  Cush.  146.  Tombeckbee  Bank  v.  Dumell,  5 
Mason,  50.     Elliot  c.  Davis,  2  Bos.  &  Pul.  338. 

(/)  Shipton  V.  Thornton,  9  Ad.  &  El.  314  and  Willm.  Woll.  &  Hodges, 
710. 


PARTNERS.  123 

on  a  bill  drawn  and  indorsed  by  the  other  in  the  name  of  J. 
B.  &  Co.  (a)     See  Nicholson  ?;.'Rieketts,  2  El.  &  El.  497. 

It  is  said,  in  1  Lindley  on  Part.  (Amer.  ed.)  258,  that  there 
is  nothing  in  the  law  of  England  to  prevent  a  firm  from  car- 
rying on  business  under  the  name  of  one  individual,  and  that 
if  it  can  be  shown  that  an  individual  allows  his  name  to  be 
used  by  a  firm,  and  the  firm  uses  it  as  its  own,  either  always 
or  only  occasionally  and  for  some  purposes,  paper  bearing  the 
name  in  question  may  be  held  by  any  bond  fide  holder  for 
value,  without  notice  whose  paper  it  really  is,  either  as  the 
paper  of  the  firm  or  as  that  of  the  individual  whose  name  is 
upon  it.  And  he  cites  South  Carolina  Bank  v.  Case,  6  Barn. 
&  Cres.  427  (which  is  reported  also  in  2  Man.  &  Ryl.  459)  as 
sustaining  this  statement  of  the  law.  But  it  was  held  in 
United  States  Bank  v.  Binney,  5  Mason,  176,  that  where  a 
partnership  is  carried  on  in  the  name  of  one  partner  only,  and 
he  indorses  notes  in  his  own  name,  the  firm  is  not  bound 
thereby,  unless  the  notes  were  received  or  discounted  as  notes 
binding  the  firm,  upon  a  representation  to  that  effect  of  the 
partner  giving  the  same,  and  were  made  for  the  common 
benefit  and  business  of  the  firm.  And  see,  to  the  same  effect, 
Manuf.  &  Mechanics'  Bank  v.  Winship,  5  Pick.  11,  and  Eth- 
eridge  v.  Binney,  9  Pick.  272. 

Generally  a  firm  is  not  liable  on  a  negotiable  instrument 
made,  drawn,  or  indorsed  in  the  name  of  one  partner  only. 
There  is  an  exception  to  this  rule,  (as  seen  above)  when  the 
firm  transacts  business  in  the  name  of  one  partner  only,  and 
also  when  one  partner  accepts  a  bill  drawn  on  the  firm,  or 
uses  his  single  name  in  other  cases  in  which  it  appears  on  the 
face  of  the  paper  to  have  been  on  partnership  account,  {h) 
Yet  though  if  a  bill  is  drawn  on  the  firm  and  is  accepted  by 
one  partner,  the  firm  is  bound,  such  acceptance  also  binds  the 
partner  who  thus  accepts,  and  an  action  may  be  maintained 
against  him  alone,  (c) 

(a)  Kirk  v.  Blurton,  9  Mees.  &  Welsh.  284,  288.  See  also  Faith  v.  Rich- 
mond, 11  Ad.  &  El.  339  and  3  P.  &  Dav.  187. 

(h)  3  Kent  Com.  (11th  ed.)  44.  1  Lindley  on  Part.  (Amer.  ed.)  259. 
Story  on  Part.  §  102.  Mason  v.  Rurasey,  1  Campb.  384.  Crozler  v.  Kirker, 
4  Texas,  252.     Heenan  v.  Nash,  8  Min.  407. 

(c)  Owen  V.  Van  Uster,  10  C.  B.  318. 


124  LAW   OP  CONTRACTS. 

One  partner  may  bind  the  firm  in  simple  contracts,  by  sign- 
ing the  name  of  all  the  partners,  as  well  as  by  signing  the 
name  of  the  firm,  {a) 

The  decisions  are  numerous  that,  as  a  general  rule,  one 
partner  has  not  implied  authority  to  bind  the  other  partners  by 
a  sealed  instrument,  and  that  he  can  do  so  only  when  author- 
ized by  a  sealed  instrument,  (b)  Yet  it  is  equally  well  settled 
that  such  instrument  executed  by  one  partner  in  the  name  of 
the  firm,  and  in  the  presence  of  the  copartners,  who  do  not 
object,  binds  the  firm,  (c)  And  so  all  the  partners  are  bound 
by  such  instrument  if  they  assent  to  it  before  its  execution, 
or  afterwards  ratify  it  and  adopt  it;  and  such  previous  author- 
ity, ratification,  or  adoption  may  be  by  parol,  (d)  And  in 
Gram  v.  Seton,  1  Hall,  262,  it  was  held  that  one  partner  may 
execute,  in  the  name  of  the  firm,  an  instrument  under  seal, 
necessary  in  the  usual  course  of  business,  which  will  bind 
the  firm,  if  the  partner  had  previous  authority  ;  and  that  such 
authority  needs  not  to  be  under  seal,  nor  in  writing,  nor  spe- 
cially communicated  for  the  specific  purpose,  but  may  be 
inferred  from  the  subsequent  conduct  of  the  copartners  im- 
plying an  assent  to  the  act.  But  the  doctrine  of  these  decis- 
ions is  denied  by  the  court,  in  Tennessee  and  in  Delaware,  (e) 

(a)  Holden  v.  Bloxum,  35  Miss.  381.  Patch  v.  Wheatland,  8  Allen,  102. 
By  Made,  J.,  3  C.  B.  794. 

(6)  Harrison  v.  Jackson,  7  T.  R.  207.  Blackburn  v.  McCallister,  Peck, 
371.  Anon.  1  Taylor,  113.  Doe  v.  Roe,  4  Smedes  &  Marsh.  261.  Drum- 
right  V.  Philpot,  16  Georgia,  424.  AVilson  v.  Hunter,  14  Wis.  683,  and  other 
cases  cited  in  the  various  treatises  on  partnership. 

(c)  Ball  V.  Dunsterville,  4  T.  R.  313.  Burn  v.  Burn,  3  Ves.  578.  Mac- 
kay  V.  Bloodgood,  9  Johns.  285. 

(c?)  Cadyy.  Shepherd,  11  Pick.  400.  Swan  u.  Stedman,  4  Met.  548.  Bond 
V.  Aitkin,  6  Watts  &  Serg.  165.  Skinner  v.  Dayton,  19  Johns.  513.  Smith 
V.  Kerr,  3  Comstock,  144.  Anthony  v.  Butler,  13  Peters,  483.  Halsey  v. 
Fairbanks,  4  Mason,  206,  232.  McDonald  u.  Eggleston,  26  Venn.  154.  Pike 
V.  Bacon,  21  Maine,  280.  Price  v.  Alexander,  2  Greene  (Iowa)  432.  Day  r. 
Laiferty,  4  Pike,  450.  Henderson  v.  Barbee,  6  Blackf.  26.  Lowery  v.  Drew, 
18  Texas,  786.     Darst  v.  Roth,  4  Wash.  C.  C.  471. 

(e)  Turbeville  v.  Ryan,  1  Humph.  113.  Litth;  i;.  Hazzard,  5  Harrington, 
291.  And  see  the  opinion  of  Henderson,  J.  in  Person  v.  Carter,  3  Murph. 
S24. 


PARTNERS.  125 

When  one  partner  may  lawfully  execute  a  specialty  that 
will  bind  the  firm,  one  seal  is  sufficient  and  is  deemed  the 
seal  of  each  partner,  whether  the  name  of  the  firm  or  the 
several  names  of  the  partners  be  used,  (a)  And  one  seal  is 
sufficient,  not  only  when  used  by  partners,  but  by  other  joint 
obligors,  or  grantors  of  real  estate,  (b)  But  when  a  deed  is 
executed  under  the  authority  of  a  power  requiring  it  to  be 
made  under  the  hands  and  seals  of  the  parties,  they  must  use 
separate  seals,  (c) 

It  has  been  repeatedly  decided,  in  this  country,  that  one 
partner  may  bind  the  firm  by  a  sealed  conveyance  of  its  per- 
sonal property  which  he  might  have  conveyed  by  simple  con- 
tract, (d)  So  of  his  assignment  of  a  chose  in  action  due  to 
the  firm,  (e)  Aliter  when  he  makes  a  contract  respecting 
real  estate  of  the  firm ;  as  if  he  executes  a  sealed  lease  that 
would  be  valid  if  made  by  oral  or  other  parol  demise.  (/) 

There  is  one  class  of  sealed  instruments,  to  wit,  releases, 
by  which  one  partner  has  implied  authority  to  bind  his  co- 
partners. It  is  a  doctrine  as  old  as  the  Year  Books,  that  a 
release  by  one  of  two  or  more  obligees  bars  all.  2  Rol.  Ab. 
410.  The  case  of  copartners  in  trade  forms  no  exception  to 
this  rule.  Each  partner  (as  has  been  seen)  is  competent  to 
sell,  or  to  compound  or  discharge  the  demands  of  the  firm. 

(a)  Ball  V.  Dunsterville,  4  T.  R.  313.  Lambden  v.  Sharp,  9  Humph.  224. 
Halsey  v.  Fairbanks,  4  Mason,  206,  232.  Day  v.  Lafferty,  4  Pike,  450. 
Mackay  v.  Bloodgood,  9  Johns.  285.  Potter  i'.  McCoy,  26  Penn.  State  Rep. 
458.  Latouehe  v.  Whaley,  Hayes  &  Jones,  43.  3  Kent  Com.  (11th  ed.) 
53,54. 

(6)  Perkins,  §  134.  3  Dev.  420.  5  Pick.  497,  by  Morton,  J.  Tasker  i?. 
Bartlett,  5  Cush.  359.  2  Washburn  on  Real  Property  (1st  ed.)  570,  (2d  ed.) 
595. 

(c)  The  King  v.  Inhabitants  of  Austrey,  6  M.  &  S.  319. 

(d)  Anderson  v.  Tompkins,  1  Brock,  4.^6.  Deckard  v.  Case,  5  Watts,  22. 
Tapley  v.  Butterfield,  1  Met.  515.  Milton  v.  Mosher,  7  Met.  244.  McCul- 
lough  w.  Sommerville,  8  Leigh,  415.  Robinson  v.  Crowder,  4  McCord,  519, 
537.  Price  v.  Alexander,  2  Greene,  (Iowa)  427.  Lasell  v.  Tucker,  5  Sneed, 
33.  Sweetzer  y.  Mead,  5  Mich.  107.  5  Hill,  113,  by  Cowen,  J.  And  see 
ante,  110,  note  a. 

(e)  Everit  v.  Strong,  5  Hill,  163  and  7  Hill,  595. 
(/)  Dillon  V.  Brown,  11  Gray,  179. 


126  LAW   OF   CONTRACTS. 

And  this  he  may  do  by  deed  of  composition  containing  a 
release,  (a)  Such  release,  however,  will  be  void  when  it  is 
clearly  proved  to  have  been  executed  by  collusion,  for  a  fraud- 
ulent purpose,  between  the  partner  and  debtor,  (b) 

There  are  partners  who  are  denominated  ostensible,  nomi- 
inal,  dormant,  or  secret,  who  are  thus  defined  in  Collyer  on 
Part.  §  4 :  "  An  ostensible  partner  is  he  whose  name  appears 
to  the  world  as  that  of  a  partner.  A  nominal  partner  is  an 
ostensible  partner  having  no  interest  in  the  firm.  A  dormant 
partner  is  he  whose  name  and  transactions  as  a  partner  are 
professedly  concealed  from  the  world.  When  he  is  actually 
unknown  to  the  world,  he  is,  more  strictly  speaking,  a  secret 
partner."  See  also  Story  on  Part.  §  80.  Chit,  on  Con.  (10th 
Amer,  ed.)  262,  263.  Slightly  different  definitions  of  dormant 
and  secret  partners  are  sometimes  found,  but  none  which  affect 
the  acknowledged  law,  that  such  partners,  when  discovered, 
are  equally  liable  with  those  who  are  held  out  as  partners,  (c) 
In  Pitts  V.  Waugh,  4  Mass.  424,  recognized  by  Story,  J.  in 
Smith  V.  Burnham,  3  Sumner,  470,  it  was  held  that  this  law 
respecting  dormant  partners  does  not  extend  to  partnerships 

(a)  3  Kent  Com.  (6th  ed.)  48,  (11th  ed.)  55.  Watson  on  Part.  (Amer. 
ed.)  165.  Colly,  on  Tart.  §  468.  Story  on  Part.  §  115.  Bisset  on  Part. 
(Amer.  ed.)  44.  And  see  Pierson  v.  Hooker,  3  Johns.  68.  Emerson  v. 
Knower,  8  Pick.  66.  Morse  v.  Bellows,  7  N.  Hamp.  567.  Bulkley  v.  Day- 
ton, 14  Johns.  387.  United  States  V.  Astley,  3  Wash.  C.  C.  511.  Elliott  r. 
Holbrook,  33  Alab.  667.  Smith  v.  Stone,  4  Gill  &  Johns.  310.  Bruen  v. 
Marquand,  17  Johns.  58.  Dudgeon  v.  O'Connell,  12  Irish  Eq.  Eep.  573. 
Forsyth  on  Composition,  15,  16.     Anjjcll  on  Assignments,  189. 

(b)  Colly,  on  Part.  §  636.  Bisset  on  Part.  (Amer.  ed.)  45.  Gow  on  Part. 
(Amer.  ed.)  97.  See  Gram  v.  Cadwell,  5  Cowen,  489.  Eastman  v.  Wright, 
6  Pick.  316.     Burrill  on  Assignments  (2d  ed.)  588.     1  Story  on  Eq.  §  681. 

That  when  a  person  colludes  with  one  partner  to  enable  him  to  injure  the 
others,  they  may  maintain  a  joint  action  of  tort  against  him  who  so  colludes, 
see  Longman  v.  Pole,  Mood.  &  Malk.  223. 

(c)  Beckham  r.  Drake.  9  Mees.  &  Welsh.  79  and  11  ib.  315.  Robinson  v. 
Wilkinson,  3  Price,  538.  Wintle  ?;.  Crowther,  1  Crompt.  &  J.  316.  Cases 
cited  ante,  123,  as  to  partnerships  carried  on  in  the  name  of  one  partner  only. 
3  Kent  Com.  (11th  ed.)  29-31.  That  a  dormant  partner  may  sue  as  well  as 
be  sued,  see  Cothay  r.  Fennell,  10  Barn.  &  Cres.  671.  Hilliker  v.  Loop,  5 
Verm.  116.     1  Lindlcy  on  Part.  (Amer.  ed.)  338. 


PARTNEES.  127 

formed  for  speculations  in  the  purchase  and  sale  of  lands. 
See  Brooke  v.  Washington,  8  Grattan,  248,  that  a  dormant 
partner  is  liable  for  lands  purchased  by  the  acting  partners,  in 
their  name,  for  partnership  uses. 

As  to  nominal  partners,  that  is,  those  who  are  not  really 
partners,  but  allow  their  names  to  be  used,  or  represent  them- 
selves to  be  partners,  the  law  is  stated,  ante,  113. 

More  will  be  found  hereafter  concerning  the  liabilities  of 
dormant  partners,  when  the  dissolution  of  a  partnership  and 
the  effects  thereof  are  reached.     Post.  137. 

Real  estate  purchased  with  partnership  funds  for  partner- 
ship purposes  is  held  to  be  partnership  property,  and  is  to  be 
applied,  so  far  as  fs  necessary,  to  the  payment  of  the  partner- 
ship debts,  unless  there  is  an  agreement  by  the  partners  that 
it  shall  be  holden  for  their  separate  use.  (a)  And  this  is  so  in 
this  country,  generally,  {b)  whether  the  estate  is  conveyed  to 
the  firm,  or  to  a  single  partner  or  to  a  stranger,  and  whether 
conveyed  to  the  firm  as  joint  tenants  or  tenants  in  common. 
In  whosoever's  name  or  names  the  legal  title  may  be,  the 
estate  will  be  treated,  in  equity,  as  belonging  to  the  partner- 
ship ;  and  those  in  whose  name  it  stands  will  be  held  as 
trustees  of  the  partnership,  and  accountable  to  the  partners, 
according  to  their  several  shares,  rights  and  interests  in  the 
partnership,  as  cestuis  que  trust  and  beneficiaries,  (c)  And 
this  rule  extends  to  the  purchaser  of  such  real  estate  from  him 
in  whom  is  the  legal  title,  if  he  has  notice,  actual  or  con- 
structive, that  it  is  partnership  property,  (d) 

(a)  In  Moran  v.  Palmer,  13  Mich,  367,  the  law  was  so  held  as  to  real  estate 
received  in  payment  of  debts  due  to  the  firm. 

(6)  It  is  so  now  in  Tennessee,  Boyers  v.  Elliott,  7  Humph.  204,  though  the 
contrary  was  formerly  held,  in  Yeatman  v.  Woods,  6  Yerg.  20.  But  in  Louis- 
iana, real  estate  purchased  in  the  name  of  a  firm  becomes  the  joint  property 
of  the  individual  partners,  and  not  partnership  property  liable  first  to  the 
partnership  debts.     Bernard  v.  Dufour,  17  Louis.  359. 

(c)  Story  on  Part.  §  92.  2  Story  on  Eq.  §  1207.  Gow  on  Part.  (1  Amer. 
ed.)  49  §•  se(/.  1  Sumner,  182.  4  Met.  541.  5  Met.  577,  585.  2  Humph. 
469.     Saxton  Ch.  441.     Newfoundland  Rep.  396.     10  Cush.  458. 

(oJ)  Hoxie  V.  Carr,  1  Sumner,  192.     Sigourney  v.  Munn,  7  Conn.  324. 


128  LAW   OP   CONTRACTS. 

Upon  the  death  of  one  partner,  the  partnership  is  ipso  facto 
dissolved  ;  and  the  question  has  often  arisen,  how  the  real 
estate  of  the  firm  is  thereupon  to  be  treated.  And  the  pre- 
vailing American  doctrine  is,  that  at  law,  the  deceased  part- 
ner's share  of  it  descends  to  his  heirs,  with  the  incidents  of 
intestate  estate  in  other  cases,  as  to  dower  of  his  widow,  lia- 
bility for  his  separate  debts,  and  for  the  debts  of  his  heirs,  but 
primarily  subject  to  the  paramount  right  of  the  surviving  part- 
ner to  apply  it,  if  needed,  in  payment  of  the  debts  of  the  firm, 
due  at  the  time  of  his  copartner's  death,  including  the  balance 
found  against  him  at  that  time,  on  a  settlement  of  the  ac- 
counts of  the  firm.  After  the  estate  has  been  so  applied,  the 
residue  thereof,  if  any,  remains  to  his  heirs.  And  if,  before  it 
is  so  applied,  the  widow  has  dower  assigned  to  her,  or  the 
heirs  convey  it,  or  separate  creditors  of  the  deceased,  or  credi- 
tors of  the  heirs,  levy  on  it,  the  surviving  partner's  rights  are 
not  thereby  affected.  The  estate  still  remains  subject  to  his 
disposal  thereof  for  payment  of  the  partnership  debts.  If 
objection  is  interposed  to  an  application  of  the  widow  for 
dower,  or  of  a  separate  creditor  of  the  deceased,  or  (it  is  pre- 
sumed) of  a  creditor  of  his  heirs,  for  judgment,  and  execution 
to  be  levied  on  the  estate,  the  court  will  not  allow  such  ap- 
plication, before  the  surviving  partner's  claim  is  satisfied,  (a) 
And  when  the  surviving  partner  was  insolvent,  his  assignees, 
under  the  insolvent  law  of  Massachusetts,  maintained  a  bill 
against  the  administrator,  heirs  and  widow  of  the  deceased 
partner,  to  compel  them  to  transfer  to  them  (the  assignees)  his 
share  of  such  real  estate,  to  be  disposed  of  by  them,  for  the 
benefit  of  the  creditors  of  the  firm,  who  might  prove  their  de- 
mands against  the  surviving  insolvent  partner ;  (b)  and  the 
assignees  were  also  held  entitled,  as  against  the  heirs  and 
widow  of  the  deceased  partner,  to  all  the  partnership  real 
estate,  and  to  the  rents  and  profits  thereof  received  by  them, 
to  be  applied  in  payment  of  the  debts  of  the  firm,  (c) 

(rt)  Dyer  V.  Clark,  5  Met.  562.  Howards.  Priest,  ib.  582.  Peck  v.  Fisher, 
7  Cush.  386.  And  see  Jarvis  v.  Brooks,  7  Foster,  37.  Winslow  v.  ChifTelle, 
Harp.  Eq.  25.     Gilmore  v.  North  Amer.  Land  Co.,  Peters  C.  C.  460. 

(b)  Burnside  v.  Merrick,  4  Met.  537. 

(c)  Howard  v.  Priest,  supra. 


PARTNERS.  129 

That  the  foregoing  is,  in  substance,  the  law  of  the  several 
States  of  the  Union,  see,  in  addition  to  the  cases  already  cited, 
those  referred  to  in  the  margin,  (a) 

One  partner,  as  seen  ante,  119,  has  implied  authority  to  sell 
to  a  bond  fide  purchaser  all  the  personal  property  of  the  firm. 
But,  like  other  tenants  in  common,  he  can  sell  and  convey,  or 
demise,  no  more  of  its  real  estate  than  his  individual  share 
thereof,  unless  specially  authorized  by  his  copartners.  And 
only  his  individual  share  is  transferred,  though  he  undertakes, 
by  the  form  of  his  contract,  to  transfer  the  whole,  {b) 

In  England,  "  the  result  of  all  the  cases,"  says  Mr.  Bisset,  "  is 
clearly  this  :  That  in  the  absence  of  a  specific  agreement  to 
the  contrary,  (c)  real  estate  purchased  with  partnership  funds 
for  partnership  purposes  is  converted  out  and  out  into  per- 
sonal estate,  and  therefore  goes  to  the  personal  representative, 
and  not  to  the  heir  of  a  deceased  partner."  {d)  As  to  the  per- 
sonal property  of  the  firm,  such  is  the  established  law,  both  in 
England  and  in  the  United  States;  but  first  subject  to  the 
payment  of  the  debts  of  the  firm,  at  the  time  of  the  deceased 

(a)  Bucban  v.  Sumner,  2  Barb.  Ch.  200,  201.  Abbott's  Appeal,  50  Penn. 
State  Rep.  234.  Goodburn  v.  Stevens,  5  Gill,  1.  Pierce's  Adm'r  v.  Trigg's 
Heirs,  10  Leigh,  406.  Sumner  v.  Hampson,  8  Ohio,  328,  365.  Andrews' 
Heirs  v.  Brown's  Adm'r,  21  Alab.  437.  Arnold  v.  Wainwright,  6  Min.  358. 
Divine  v.  Mitchum,  4  B.  Monroe,  488.  Loubat  v.  Nourse,  5  Florida,  350. 
Sigourney  v.  Munn,  7  Conn.  11.  Crocker  v.  Crooker,  46  Maine,  250.  Piatt 
V.  Oliver,  3  McLean,  27. 

(ft)  1  Brock.  463,  by  Marshall,  C.  J.  5  Met.  518,  519,  by  Shaw,  C.  J. 
Mussey  v.  Holt,  4  Foster,  248.  Dillon  v.  Brown,  11  Gray,  180.  Jackson  v. 
Stanford,  19  Georgia,  14.     Story  on  Part.  §  101. 

(c)  It  may  happen,  says  Chief  Justice  Shaw,  (5  Met.  579)  that  real  estate 
is  so  purchased  as  to  indicate  that  the  parties  intended  to  purchase  it  to  be 
held  by  them  separately  for  their  separate  use;  as  when  there  is  an  ex- 
press agreement  at  the  time  of  the  purchase,  or  a  provision  in  the  articles  of 
partnership,  or  where  the  price  of  such  purchase  is  charged  to  the  pai'tners 
respectively,  in  their  several  accounts  with  the  firm.  This  would  operate  as  a 
division  and  distribution  of  so  much  of  the  funds,  and  each  would  taike  his 
share  divested  of  any  implied  trust. 

(d)  Bisset  on  Part.  (Amer.  ed.)  33,  where,  and  in  the  previous  and  subse- 
quent pages,  the  authorities  are  collected.  See  also  Colly,  on  Part.  (3d 
Amer.  ed.)  §§  133  ^  seq.  Story  on  Part.  §§  92, 93.  1  Lindley  on  Part.  (Amer. 
ed.)  463. 


130  LAW   OF   CONTRACTS. 

partner's  death.  The  grounds  of  this  doctrine  are  these : 
That  partnership  property  is  to  be  first  applied  to  the  payment 
of  partnership  debts,  and  only  what  remains  thereof,  after  such 
payment,  is  liable  for  the  separate  debts  of  the  partners,  or  is 
distributable  among  the  legal  representatives  or  heirs  of  a  de- 
ceased partner,  and  that  the  share  of  one  partner  is  only  the 
balance  that  may  be  found  in  his  favor,  after  a  settlement  of 
the  concerns  of  the  partnership,  (a)  In  England,  after  the 
death  of  one  partner,  both  the  real  and  personal  estate  of  the 
firm  is  taken  by  the  surviving  partner,  and  all  disposed  of  as 
personalty ;  (b)  in  this  country,  so  much  of  the  real  estate,  as 
is  not  required  for  payment  of  partnership  debts,  is  disposed 
of  like  other  real  estate  of  the  deceased  partner. 

An  action  at  law  cannot  be  maintained  by  one  partner 
against  the  firm  to  recover  a  debt  due  to  him  from  the  firm  ;  for 
in  an  action  against  the  firm  all  the  known  partners  must  be 
made  defendants,  and  no  one  can  be  plaintiff  and  defendant 
in  a  suit  at  law.  (c)  For  the  same  reason  one  firm  cannot 
have  an  action  against  another,  if  there  be  one  or  more  per- 
sons partners  in  both  firms,  (d)  But  if  a  firm  gives  to  one  of 
the  partners  a  negotiable  instrument,  he  may  indorse  it  to  a 
third  person  who  may  maintain  an  action  thereon  against  the 
firm  ;  for,  says  Shaw,  C.  J.,  "  it  is  the  promise  of  all  to  the 
order  or  appointment  of  one,  and  when  the  appointment 
is   made   by  indorsement,   it   is   a   valid   contract   with    the 

(a)  1  Lindley  on  Part.  (Amer.  ed.)  463.  Mart.  &  Yerg.  309.  5  Met. 
575,  576,  585.     4  Wis.  102.     4  McLean,  186,  236. 

(6)  That  is,  it  is  converted  into  money.  Story  on  Part.  §  350.  Gow  on 
Part.  (1st  Amer.  ed.)  316.  3  Kent  Com.  (11th  ed.)  73,  74.  "It  is  a  prin- 
ciple that  all  property,  whether  real  or  personal,  is  subject  to  a  sale  on  a  dis- 
solution of  the  partnership."  By  Sir  John  Leach,  Tamlyn,  261.  This 
probably  is  true  only  when  there  is  not  an  agreement  between  the  representa- 
tives of  the  deceased  partner  and  the  survivor,  that  the  latter  may  retain  the 
property  in  specie,  on  paying  them  therefor  the  true  value  of  their  adjusted 
share. 

(c)  Story  on  Part.  §  221.  1  Lindley  on  Part.  (Amer.  ed.)  181, 182.  Ad- 
dison on  Con.  (2d  Amer.  ed.)  728. 

(d)  lb.  Bosanquet  v.  Wray,  6  Taunt.  597  and  2  Marsh.  319.  Portland 
Bank  v.  Hyde,  2  Fairf.  196. 


PARTNERS.  131 

indorsee."  (a)  And  such  indorsement  may  be  made  after  the 
partnership  is  dissolved.  Temple  v.  Seaver,  11  Cush.  314. 
So  if  one  or  more  persons  be  partners  in  two  firms,  and 
one  firm  give  a  negotiable  note  to  the  other,  the  firm  to 
which  the  note  is  given  may  indorse  it  to  a  third  party,  who 
may  enforce  payment.  Fulton  v.  Williams,  11  Cush.  108. 
As  to  actions  at  law  between  partners  concerning  the  ac- 
counts of  the  firm,  it  is  the  established  general  rule,  not  only 
in  England  but  also  in  this  country,  that  they  cannot  be  main- 
tained ;  that  the  question  whether,  on  the  state  of  the  ac- 
counts of  the  firm,  one  or  more  partners  be  indebted  to  a 
copartner,  is  to  be  determined  only  by  a  court  of  equity ;  and 
the  assigned  reason  is,  that  a  court  of  law  cannot  do  ef- 
fectual justice  between  the  parties,  (b)  The  action  of  account, 
however,  where  that  action  exists,  is  still  open  to  one  partner 
against  another,  but  is  almost  entirely  disused.  1  Montagu 
on  Part.  45.  3  Johns.  Ch.  360, 361.  1  Story  on  Eq.  §  662.  (c) 
But  there  are  exceptions  to  the  above-mentioned  general  rule. 
It  is  not  applied  to  cases  where  partners  have  finally  balanced 
all  their  accounts  and  a  certain  sum  has  been  found  due  to 
one  of  them  ;  but  in  such  cases  he  may  sue  at  law  the  partner 

(a)  Thayer  v.  Buffum,  11  Met.  399.  See  also  Blake  v.  Wheadon,  2 
Haywood,  109.  Smith  v.  Lusher,  5  Cowen,  688.  Richards  v.  Fisher,  2  Allen, 
527. 

(b)  Colly,  on  Part.  §  264.  Bisset  on  Part.  (Amer.  ed.)  78.  2  Lindley  on 
Part.  (Amer.  ed.)  585-589.  Chit,  on  Con.  (10th  Amer.  ed.)  270.  1  Story 
on  Eq.  c.  xv.  Chase  v.  Garvin,  19  Maine,  211.  Beach  v.  Hotchkiss,  2  Conn. 
425.  Williams  v.  Henshaw,  11  Pick.  79.  Shattuck  v.  Lawson,  10  Gray,  405. 
Young  V.  Brick,  Pennington,  (2d  ed.)  490.  Robinson  v.  Green's  Adm'rs,  5 
Harrington,  115.  Westerlo  v.  Evertson,  1  Wend.  532.  Kennedy  v.  McFa- 
don,  3  Har.  &  Johns.  194.  Ozeas  v.  Johnson,  4  Dallas,  434  and  1  Binn.  191. 
Lamalere  v.  Caze,  1  Wash.  C.  C.  435.  Gouldsborough  i;.  Mc Williams,  2 
Cranch  C.  C.  Rep.  401.  Lawrence  v.  Clark,  9  Dana,  257.  Austin  v. 
Vaughan,  14  Louis.  Ann.  Rep.  43.  Philips  v.  Lockhart,  1  Alab.  521.  Frink 
V.  Ryan,  3  Scammon,  322.  Lower  v.  Denton,  9  Wis.  268.  Bailey  v.  Starke, 
1  English,  191.  And  such  was  the  law  of  Indiana  until  the  distinction  be- 
tween law  and  equity  was  abolished  in  that  State.  Duck  v.  Abbott,  24. 
Ind.  349.     See  Halderman  v.  Halderman,  Hempstead,  559. 

(c)  In  Massachusetts  the  action  of  account  is  abolished  by  statute.-  Rev. 
Sts.  c.  118,  §  43.     Gen.  Sts.  c.  129,  §  1. 


132  LAW   OF   CONTRACTS. 

against  whom  such  balance  has  been  struck.  Bisset  on  Part. 
(Amer.  ed.)  83.  2  Lindley  on  Part.  (Amer.  ed.)  582.  19 
Ohio,  44.  13  Alab.  214.  3  Ired.  300.  3  Pick.  423.  11  ib.  81. 
10  Iowa,  332,  and  numerous  other  books.  And  it  is  held  that 
an  action  may,  in  such  cases,  be  maintained  by  one  partner 
against  another,  when  the  judgment  will  be  an  entire  termina- 
tion of  the  partnership  concerns,  although  every  item  of  the 
accounts  of  the  firm  is  not  included  in  the  balance  struck  or 
agreed  upon  in  his  favor.  Thus,  where  it  appeared  in  such 
case,  that  there  was  one  debt  of  the  firm  which  had  not  been 
paid,  and  the  plaintiff  released  to  the  defendant  the  amount  of 
that  debt,  (a)  and  where  outstanding  demands  of  the  firm, 
which  were  not  brought  into  the  settlement  of  their  accounts, 
were  shown  not  to  be  collectible,  an  action  was  sustained,  (b) 

The  decisions  are  not  uniform  on  the  question  whether  a 
suit  at  law  can  be  maintained  by  one  partner  against  another, 
on  a  balance  of  the  partnership  accounts,  upon  the  other's 
promise  of  payment  implied  by  law,  or  only  on  his  express 
promise.  In  England,  an  express  promise  is  not  required ;  (c) 
nor  in  New  Jersey ;  (d)  nor  in  Massachusetts,  (e)  Contra  in 
New  York;  (/)  in  South  Carolina,  (g)  and  in  Illinois,  (h) 
In  Pennsylvania,  opposite  extrajudicial  opinions  have  been 
expressed,  (4  Watts  &c  Serg.  16  and  4  Barr,  283,)  but  it  is  not 
known  that  the  question  has  been  decided. 

There  are  various  other  cases  in  which  one  partner  may 
maintain  a  suit  at  law  against  a  copartner.  See  2  Lindley  on 
Part.  (Amer.  ed.)  578-585. 

(a)  Brinley  v.  Kupfer,  6  Pick.  179.  Sikes  v.  Work,  6  Gray,  433.  See 
also  Musier  v.  Trumpbour,  5  Wend.  274.  Clark  v.  Dibble,  16  Wend.  601. 
Byrd  v.  Fox,  8  Missouri,  574.     Robinson  v.  Curtis,  1  Stark.  R.  78,  79. 

(6)  Williams  v.  Henshaw,  11  Pick.  79. 

(c)  Rackstraw  v.  Imber,  Holt  N.  P.  368.  Wray  v.  Milestone,  5  Mees.  & 
Welsb.  21. 

((/)  Jaques  v.  Ilulit,  1  Harrison,  38,  41. 

(e)  Fanning  v.  Chadwick,  3  Pick.  420. 

(/)  Casey  v.  Brush,  2  Caines,  293.  Westerlo  v.  Evertson,  1  Wend. 
532. 

(g)  Course  v.  Prince,  1  Rep.  Const.  Ct.  416. 

(A)  Chadsey  v.  Harrison,  11  Illinois,  151. 


PAETNERS.  183 

Such  action  is  maintainable,  when  stipulations  contained 
in  the  articles  of  partnership  are  violated  by  one  partner,  (a) 
As  where,  in  their  articles,  partners  stipulate  to  settle  peri- 
odically and  to  make  a  final  adjustment  of  their  concerns  at 
the  expiration  of  the  partnership,  and  one  partner  refuses 
so  to  do,  (b)  or  where  one  partner  engages  to  furnish  a 
certain  amount  of  money  or  stock,  for  the  purposes  of  the 
partnership,  and  fails  to  furnish  it.  (c)  So  where  one  partner 
gives  to  another  a  promissory  note  for  payment  of  part  of  the 
capital  stock,  he  is  liable  to  the  other  in  an  action  at  law 
on  the  note,  (d)  Where  one  partner  received  rqoney  to  the 
separate  use  of  a  copartner  and  wrongfully  carried  it  to 
the  partnership  account,  he  was  held  liable  to  his  copartner  in 
an  action  for  money  had  and  received,  (e)  And  where  one 
partner  gave  a  note  of  the  firm  for  his  private  debt,  w^hich 
note  the  firm  were  compelled  to  pay,  it  was  held  that  the  co- 
partners might  recover  of  him,  in  an  action  for  money  paid, 
the  amount  paid  on  the  note.  Cross  v.  Cheshire,  7  Exch. 
43.  See  the  same  rule  applied  in  the  earlier  case  of  Osborne 
V.  Harper,  5  East,  225.  Where  one  partner,  after  the  partner- 
ship was  dissolved,  paid  the  debts  of  the  firm  and  took  a  note 
of  his  copartners  in  payment  thereof,  it  was  held  that  he 
might  maintain  an  action  on  the  note,  though  he  had  received 
the  books  and  accounts  of  the  firm  for  collection  and  settle- 
ment ;  it  not  appearing  that  he  did  not  pay  those  debts  with 
his  separate  funds.  (/)  And  where  two  partners  are  about 
closing  their  concerns,  and  it  is  manifest  that  on  a  final  settle- 
ment a  balance  will  be  against  one  of  them,  though  the  exact 

(a)  Watson  on  Part.  (Amer.  ed.)  292.  Murphy  v.  Crafts,  13  Louis.  Ann. 
Rep.  519. 

(b)  Foster  v.  AUanson,  2  T.  R.  482,  by  Buller,  J.  Duncan  v.  Lyon,  3 
Johns.  Ch.  362.     Gary  on  Part.  (Amer.  ed.)  29. 

(c)  Venning  v.  Leckie,  13  East,  7.  Gale  v.  Leckie,  2  Stark.  R.  107.  Ad- 
dison on  Con.  (2d  Amer.  ed.)  729,  730.  Vance  v.  Blair,  18  Ohio,  532.  El- 
lison V.  Chapman,  7  Blackf.  224.  Terrill  v.  Richards,  1  Nott  &  McCord,  20. 
See  also  Thomas  v.  Pyke,  4  Bibb,  418. 

((/)   Grigsby's  E.x'r  v.  Nance,  3  Alab.  347. 
(e)   Smith  v.  Barrow,  2  T.  R.  476. 
(/)  Lyon  V.  Malone,  4  Porter,  497. 


134  LAW   OF   CONTRACTS. 

amount  of  that  balance  cannot  be  ascertained,  and  he  gives 
to  the  other  a  promissory  note,  not  exceeding  the  amount  of 
the  balance  that  will  be  due  from  him  on  a  final  settlement, 
he  is  liable  on  such  note,  (a) 

There  are  also  cases  in  which  one  partner  may  sue  another 
at  law  respecting  matter  which,  though  it  relates  to  the  part- 
nership  business,  is   separated  by   special  agreement  of  the 
partners  from  all  other   matters   in  question  between   them, 
and  should  be  determined  without  reference  to  the  accounts 
of  the  firm.     Broom  on  Parties,  §  76.     Bisset  on  Part.  (Amer. 
ed.)  84.     2  Lindley  on  Part.  (Amer.  ed.)  582.     Story  on  Part. 
§  219.     See  Wiggin  v.  Cumings,  8  Allen,  353.     Chamberlain 
V.  Walker,  10  Allen,  429.     Thus  where  upon  the  dissolution 
of  a  partnership  between  two  only,  it  was  agreed  by  them  to 
divide  the  materials  of  the  firm,  each  taking  one  half  in  value, 
article  by  article,  according  to  a  valuation  to  be  made,  and 
after   the  valuation   was  made,  one  of  them  agreed  to  take 
the  whole  at  the  valuation,  and  took  possession   thereof,  it 
was  decided   that  he  was  liable  to   the  other,   in  an  action 
for    goods    sold  and    delivered,    for    one    half    the    value    of 
those   materials,  {b)      And  where  one   partner   promised  his 
copartner  to  repay  him  from  the  partnership  funds,  if  he  would 
accept  and  pay  certain  bills  of  exchange  drawn  on  the  firm, 
and  he  did  so,  it  was  held  that  the  money  in  the  other  part- 
ner's hands  became  separated  from  the  partnership  account, 
and  that  his  copartner  might  maintain  an  action  against  him 
for    money  had   and  received,  (c)     And  where   two  partners 
had  a  controversy  concerning    the    settlement    of   a  part  of 
the   concerns   of  the   firm,  and  they  submitted  the  matter  to 
arbitrators,  who  awarded  that  one  should  pay  the  other  a  cer- 
tain sum,  which  he  promised   to  pay,  it  was   decided  that  he 
was  liable  to  the  other  in  an  action  on  the  award,  upon  his 
refusal  to  pay.  {d)     And  when  partners,  during  the  continu- 
ance of  the  partnership,  make  up  an  account  of  their  concerns 

(a)  Rockwell  v.  Wilder,  4  ISIot.  556. 

(i)  Jackson  v.  Stopherd,  2  Crompt.  &  Mees,  361  and  4  Tyrw.  330. 

(c)  Coffee  V.  Brian,  3  Bing.  54  and  10  Moore,  341. 

(rf)  Gibson  v.  Moore,  6  N.  Hamp.  547. 


PARTNERS.  135 

at  intervals,  and  one  of  them  gives  to  the  other  a  note  for  the 
true  balance  then  found  in  his  favor,  and  such  balance  is  not 
carried  forward  to  a  new  account,  but  is  treated  as  a  liquida- 
tion of  accounts  existing  at  the  date  of  such  accounts,  he  is 
held  liable  to  an  action  on  such  note,  (a) 

Dissolution  of  a  partnership  is  effected  by  various  causes 
which  are  set  forth  in  the  several  treatises  on  partnership,  and 
which  will  not  be  here  enumerated.  Only  the  main  incidents 
and  effects  of  a  dissolution  are  now  to  be  stated. 

Partners,  after  a  voluntary  dissolution,  have  the  same 
power  which  they  before  had  to  perform  any  act  relating  to 
their  debts  and  contracts  that  existed  at  the  time  of  dissolu- 
tion, and  they  remain  jointly  liable  for  all  debts  and  engage- 
ments contracted  by  them  before  that  time,  (b)  And  upon 
dissolution  by  the  death  of  one  partner,  all  the  previous  rights, 
duties  and  liabilities  of  the  firm  attach  to  the  survivor,  (c) 
But,  after  dissolution,  one  partner  cannot,  unless  specially  au- 
thorized, bind  his  copartner,  by  any  new  contract  in  the  name 
of  the  firm,  even  to  pay  an  acknowledged  debt  of  the  firm  ;  (d) 

(a)  Preston  v.  Strutton,  1  Anstr.  50.  Copley  w. Richardson,  4  Louis.  Ann. 
Rep.  512.  See  also  Brierly  v.  Cripps,  7  Car.  &  P.  709.  There  is,  however, 
a  dictum  of  Best,  C.  J.  in  2  Bing.  172,  that  it  is  only  on  a  final  balance  of  all 
the  partnership  accounts,  that  one  partner  can  maintain  an  action  against 
another  to  recover  the  balance  found  in  his  favor  ;  that  "  a  balance  during  the 
continuance  of  the  concern  will  not  do." 

(6)  Bisset  on  Part.  (Araer.  ed.)  59  Sf  seq.  1  Lindley  on  Part.  (Amer.  ed.) 
298,  299.     Story  on  Part.  c.  xiv.     3  Kent  Com.  (11th  ed.)  72,  73. 

(c)  Cary  on  Part.  (Amer.  ed.)  50.  5  Met.  576.  Shields  v.  Fuller,  4  Wis. 
102.     Major  v.  Hawkes,  12  lUinois,  298. 

(c?)  Bisset,  supra.  Fisk  v.  Mead,  18  Louis.  568.  White  v.  Tudor,  24 
Texas,  639.  Burr  v.  Williams,  20  Ark.  171.  Cunningham  v.  Bragg,  37 
Alab.  436.  Humphries  v.  Chastain,  5  Georgia,  166.  Bank  of  S.  Carolina  v. 
Humphreys,  1  McCord,  388.  Fowler  v.  Richardson,  3  Sneed,  508.  Merrit 
V.  Pollys,  16  B.  Monroe,  355.  Hamilton  v.  Seaman,  1  Carter  (Ind.)  185. 
Palmer  v.  Dodge,  4  Ohio  State  Rep.  21.  Hurst  v.  Hill,  8  Maryl.  399.  Bell 
V.  Morrison,  1  Peters,  370,  371.  Lockwood  v.  Comstock,  4  McLean,  383. 
National  Bank  v.  Norton,  1  Hill  (N.  Y.)  572.  Parker  v.  Macomber,  18  Pick. 
505.  Fellows  V.  Wyman,  33  N.  Hamp.  351.  Perrin  v.  Keene,  19  Maine, 
355.  But  in  Kemp  v.  Coffin,  3  Greene  (Iowa)  190,  it  was  held  that  after  a 
dissolution,  the  setthng  partner  might  give  a  note  in  the  name  of  the  firm  to 
liquidate  a  partnership  debt. 


136  LAW   OP   CONTRACTS. 

nor,  by  a  new  promise,  render  them  liable  to  pay  a  debt  barred 
by  the  statute  of  limitations,  (a)  But  he  may  indorse  a  note 
given  to  him  by  the  firm  before  dissolution,  so  as  to  enable 
the  indorsee  to  maintain  an  action  thereon  against  the  firm. 
Ante,  131. 

Not  only  are  partners,  after  dissolution,  generally  entitled  to 
the  rights,  and  subject  to  the  liabilities  of  the  firm,  as  to  mat- 
ters preceding  the  dissolution,  but  they  are  sometimes  held 
liable  on  contracts  made  after  the  dissolution,  to  the  same  ex- 
tent as  they  would  have  been  if  the  partnership  had  not  been 
dissolved.  For  it  is  established  law  that,  as  to  the  public,  a 
dissolution  of  partnership  does  not  avail  the  firm,  unless 
notice  thereof  be  given ;  and  in  England  such  notice  is  re- 
quired to  be  given  in  the  Gazette,  published  in  London. 
Hence,  when  one  partner  retires  without  such  notice  being 
given,  and  the  name  of  the  firm  is  afterwards  continued,  he 
who  deals  with  the  firm,  afterwards,  has  a  legal  remedy 
against  all  the  original  partners,  unless  he  had  actual  notice 
or  knew  that  one  of  them  had  retired.  And  this,  as  seen 
ante,  63,  64,  is  so  in  case  of  an  infant  as  well  as  of  an  adult 
partner.  But  if  such  public  notice  is  given,  it  will  exonerate 
the  retiring  partner  from  liability  on  contracts  made  by  the 
firm,  after  dissolution,  with  those  who  were  not  formerly 
their  customers  ;  even  though  the  remaining  partners  continue 
business  under  the  name  of  the  old  firm,  if  done  without  the 
retiring  partner's  consent.  Notice,  however,  or  knowledge  of 
the  dissolution,  is  necessary  to  the  discharge  of  a  retiring 
partner  from  liability  on  the  subsequent  contracts  of  the  firm 
with  those  who  dealt  with  and  trusted  them,  before  the  disso- 
lution, (b) 

(a)  Powell  on  Ev.  (2d  ed.)  157,  158.  1  Taylor  on  Ev.  611,  612.  Angell 
on  Lim.  (3d.  ed.)  c.  xxiii.  1  Greenl.  on  Ev.  §  112  and  note.  Story  on  Part. 
^  324  and  note.     Brewster  v.  Hardeman,  Dudley,  (Georgia)  139. 

(h)  Colly,  on  Part.  (3d  Amer.  ed.)  §§  120,  530-535,  690.  1  Lindley  on 
Part.  (Amer.  ed.)  294,  295.  Bisset  on  Part.  (Amer.  ed.)  66-68.  Story  on 
Part.  §  320  ^  seq.  Chit,  on  Con.  (10th  Amer.  ed.)  285  Sf  seq.,  and  American 
cases  there  cited.  Kirkman  i'.  Snodgrass,  3  Head,  370.  Lowe  v.  Penny,  7 
Louis.  Ann.  Rep.  356.  In  Reilly  i;.  Smith,  16  Louis.  Ann.  Rep.  31,  it  was 
held  that  notice  of  the  retirement  of  a  partner,  published  in  a  newspaper  to 


PABTNERS.  137 

After  a  voluntary  dissolution,  of  which  one  who  had  previ- 
ous dealings  with  the  firm  and  held  its  promissory  note  had 
no  knowledge,  it  was  held  that  part  payment  of  the  note  by 
one  of  the  partners,  within  six  years  from  its  date,  took  it  out 
of  the  operation  of  the  statute  of  limitations,  as  it  would  if 
the  payment  had  been  made  during  the  continuance  of  the 
partnership,  (a) 

Notice  of  a  dormant  partner's  retirement  from  the  firm  is 
not  generally  necessary  to  exonerate  him  from  subsequent 
liabilities  incurred  by  the  firm,  (b)  But  such  notice  must  be 
given  to  those,  if  any,  who  knew  him  to  be  a  partner,  (c) 

The  death  of  a  partner  is  held  to  be  "  a  public  fact."  No- 
tice thereof  is,  therefore,  not  required  to  be  given  by  the  sur- 
viving partners,  in  order  that  they  may  avoid  liabilities  in  con- 
sequence of  the  subsequent  misuse  of  the  partnership  name 
by  one  of  them.  Thus,  where  J.,  H.,  C.  and  L.  were  partners, 
and  the  style  of  the  firm  was  J.,  H.  &  Co.,  and  C.  died,  and  L. 
afterwards  signed  a  note  in  the  name  of  J.,  H.  &  Co.,  without 
the  consent  or  knowledge  of  J.  and  H.,  and  the  payee  of  the 
note  brought  an  action  thereon  against  the  surviving  partners, 
it  was  decided  that  J.  and  H.  could  not  be  held  to  pay  it,  al- 
though they  had  not  given  notice  of  the  dissolution  of  the 
partnership  by  the  death  of  C.  (d) 

which  a  customer  of  the  firm  was  a  subscriber,  was  not  of  itself  legal  notice 
to  him  of  the  dissolution  of  the  partnership ;  that  actual  notice  must  be 
brought  home  to  him.  And  see  Vernon  v.  Manhattan  Co.,  17  Wend.  524. 
Colly,  on  Part.  §  532.  When  no  notice  of  a  dissolution  has  been  published, 
nor  knowledge  thereof  brought  home  to  a  party  who  is  to  be  affected  by  it, 
evidence  of  the  mere  notoriety  of  the  dissolution  is  not  admissible  to  prove 
such  notice.     Pitcher  v.  BaiTOws,  17  Pick.  361. 

(a)   Sage  v.  Ensign,  2  Allen,  245.     Tappan  v.  Kimball,  10  Foster,  136. 

lb)  Colly,  on  Part.  §  536.  By  Patteson,  J.  4  B.  &  Ad.  177.  Kelley  i'. 
Hurlburt,  5  Cowen,  534.  Scott  v.  Colmesnil,  7  J.  J.  Marsh.  423.  Armstrong 
r.  Hersey,  12  Serg.  &  R.  315.  Grosvenor  v.  Lloyd,  1  Met.  19.  In  Scotland, 
however,  notice  must  be  given  to  a  party  dealing  with  the  firm,  as  well  in 
cases  of  a  dormant  partner's  retiring,  as  in  other  cases.  Hay  v.  Mair,  3 
Ross's  Lead.  Cas.  (Amer.  ed.)  440. 

(c)  Bisset  on  Part.  (Amer.  ed.)  67,  68.  Evans  v.  Drummond,  4  Esp.  R. 
89.     Park  v.  Wooten's  Ex'rs,  35  Alab.  242. 

(d)  Marlett  v.  Jackman,  3  Allen,  287.      In  this  case,  Bigelow,  C.  J.  said: 


138  LAW   OP   CONTRACTS. 

13.  Executors  and  Administrators. 

Executors  and  administrators  have  no  power  to  charge  the 
decedent's  estate  by  any  contract  originating  with  themselves; 

"  It  is  remarkable  that  no  ease  can  be  found,  either  in  this  country  or  in  Eng- 
land, in  which  the  question  has  been  adjudicated,  whether  in  case  a  partnership 
is  dissolved  by  death,  the  surviving  partners  are  bound  to  give  notice  of  such 
dissolution  in  order  to  avoid  a  liability  occasioned  by  the  subsequent  misuse  of 
the  partnership  name  by  one  of  the  firm.  The  adjudged  cases  have  gone  no 
further  than  to  hold  that  neither  the  estate  of  the  deceased  partner  nor  his 
heirs  or  personal  representatives  can  be  held  on  a  contract  entered  into  in  the 
name  of  the  firm  subsequently  to  his  death,  although  no  notice  of  the  dissolu- 
tion of  the  firm  has  been  given.  VuUamy  v.  Noble,  3  Meriv.  614,  Webster 
V.  Webster,  3  Swanst.  490,  note.  Caldwell  v.  Stileman,  1  Rawle,  212. 
Washburn  v.  Goodman,  17  Pick.  519,  526.  Two  text  writers,  however,  of 
great  learning  and  authority,  have  laid  down  the  rule,  that  where  a  copart- 
nership is  dissolved  by  the  death  of  one  of  the  copartners,  no  notice  of  the 
dissolution  is  necessary,  and  that  the  surviving  members  are  not  bound  by  any 
new  contract  entered  into  by  one  of  the  firm,  in  the  copartnership  name  after 
such  dissolution,  although  it  is  made  with  a  person  who  had  previously  dealt 
with  the  firm  and  had  no  notice  or  knowledge  that  it  was  terminated  by  the 
death  of  one  of  the  members.  3  Kent  Com.  (6th  ed.)  63,  67.  Story  on  Part. 
§§,  319,  336,  339.  The  same  doctrine  is  stated  by  the  American  editor  of 
Colly,  on  Part.  (3d  Amer.  ed.)  §§  120,  538.  Certain  it  is,  that  the  reason  of 
the  rule  which  requires,  in  cases  of  the  dissolution  of  a  firm  caused  by  the  vol- 
untary act  of  the  parties,  or  by  circumstances  which  would  necessarily  come 
within  the  knowledge  of  the  copartners,  but  might  be  unknown  to  third  per- 
sons, that  notice  of  it  should  be  given,  in  order  to  relieve  the  members  from 
future  responsibility,  does  not  apply  where  the  copartnership  is  terminated  by 
death.  The  true  doctrine  on  this  point  is  well  stated  by  Mr.  Bell,  in  his 
learned  Commentaries  on  the  Laws  of  Scotland.  '  The  opinion  has  certainly 
prevailed  very  generally,  that  no  notice  is  necessary  ;  that  the  partnership, 
according  to  the  common  course  of  the  law,  is  dissolved  by  death  ;  that  those 
who  deal  with  the  company  are  held  to  know  the  state  of  their  debtor  ;  and 
that  the  publication  of  all  deaths,  according  to  the  common  custom  of  the 
world,  places  this  sort  of  information  within  the  reach  of  ordinary  care  and 
diligence.'  2  Bell  Com.  (4th  ed.)  §  1234.  The  same  principle  is  stated  in  a 
case  adjudicated  by  the  Court  of  Session  in  Scotland  subsequently  to  the 
publication  of  ]\Ir.  Bell's  treatise.  '  Death  operates  a  dissolution  of  itself; 
and  being  a  public  fact  all  men  are  bound  to  know  it.'  Christie  v.  Royal 
Bank,  1  Cases  in  Court  of  Session  (1839)  745,  765.  In  this  respect,  the  con- 
sequences of  a  dissolution  by  death  are  the  same  as  one  occasioned  by  war 
between  two  countries  of  which  copartners  are  respectively  citizens.  No 
notice  is  required  to  be  given  when  a  fact  is  of  a  public  nature.  Griswold 
».  Waddington,  15  Jolins.  57.     S.  C.  16  Johns.  438." 


PARTNERS.  139 

but  their  contracts  in  the  course  of  administration,  or  for 
payment  of  the  decedent's  debts,  render  themselves  person- 
ally liable,  if  made  on  sufficient  consideration.  If,  there- 
fore, they  give  promissory  notes  for  his  debts,  or,  on  sell- 
ing his  real  estate,  under  license  granted  by  the  proper  au- 
thority, they  covenant  concerning  the  title  thereto,  although 
they  profess  to  do  it  as  executors  or  administrators,  or  in 
their  capacity  as  such,  they  are  personally  liable  to  an  action 
thereon,  and  to  a  judgment,  de  bonis  propriis,  whether  they 
have  or  have  not  assets,  {a)  The  assets  of  persons  deceased 
cannot  be  lawfully  affected  by  the  contracts  of  their  personal 
representatives,  except  in  case  of  an  executor,  by  provision 
in  his  testator's  will. 

Though  executors  and  administrators,  who  have  sufficient 
assets,  are  legally  bound,  without  any  express  promise,  to  pay 
the  decedent's  debts,  yet  if  they,  on  sufficient  consideration,  ex- 
pressly promise  payment,  they  may  be  held  personally  on  such 
promise.  But  a  general  promise  by  them  to  pay  a  claim  against 
the  decedent  is  void,  unless  there  be  assets  or  some  other  legal 
consideration  for  the  promise,  {b)  Forbearance  to  sue  was 
early  held  to  be  a  sufficient  consideration  for  an  executor's  ex- 
press promise  to  pay  a  demand  on  the  testator's  estate,  (c) 
"  If"  says  Lord  Eldon,  "  an  executor  or  administrator  think 
fit  to  refer  generally  all  matters  in  dispute  to  arbitration  with- 
out protesting  against  the  reference  being  taken  as  an  admis- 
sion of  assets,  it  will  amount  to  an  admission."  {d)  And  a 
bond  given  to  the  judge  of  probate,  by   an  executor,  to  pay 

(a)  ByBuUer,  J.  1  T.  R.  479.  Goring  v.  Goring,  Yelv.  11.  Cbilds  v. 
Monins,  5  Moore,  282  and  2  Brod.  &  Bing.  460.  Sumner  v.  Williams,  8 
Mass.  162.  See  also  Aven  v.  Beckom,  11  Georgia,  1.  McDonald  j;.  McDon- 
ell,  6  Queen's  Bench  Rep.  (Upper  Canada,)  109. 

(h)  Reecb  v.  Kennegal,  1  Ves.  Sen.  123,  126.  Pearson  v.  Henry,  5  T.  R. 
6.     2  Lomax  on  Ex'rs,  (2d  ed.)  453.     Williams  v.  Chaffin,  2  Dev.  333. 

(c)  1  Rol.  Ab.  28.  Fish  v.  Richardson,  Yelv.  55  and  Cro.  Jac.47.  Davis 
V.  Wright,  1  Vent.  120  and  2  Lev.  3.  2  Williams  on  Ex'rs,  (4th  Amer.  ed.) 
1513  ^'seq.  Concerning  forbearance,  as  a  consideration  for  a  promise,  see 
post.  c.  iii. 

{d)  2  Rose,  50,  51.     See  also  7  T.  R.  453.     5  Bing.  200  and  2  Moore  & 

Payne,  345. 


140  LAW  OP   CONTEACTS. 

the  testator's  debts  and  legacies,  is  an   admission  of  assets, 
which  he  is  estopped  to  deny,  (a) 

An  express  promise  by  an  administrator  to  pay  a  groundless 
claim  on  the  intestate's  estate  is  void,  (b)  He  has  no  author- 
ity to  enter  into  any  arrangement  to  bind  the  estate  to  pay 
claims  thereon  which  the  intestate  was  under  no  legal  obliga- 
tion to  pay.  (c) 

If  an  action  on  a  claim  upon  the  decedent's  estate  is 
brought  against  an  executor  or  administrator,  after  the  time 
limited  by  statute  for  the  bringing  of  such  action,  he  is  bound 
to  interpose  the  statute  in  defence.  He  cannot  lawfully  bind 
the  estate,  and  affect  the  heirs,  by  suffering  a  judgment  in 
such  action.  By  so  doing,  without  the  heirs'  consent,  he  may 
render  himself  liable  to  them  for  unlawful  administration,  (d) 
A  license  granted  to  him  to  sell  real  estate  of  the  decedent  to 
pay  a  debt  barred  by  such  statute  is  void  as  against  the  heirs 
and  legatees,  (e) 

But  an  executor  or  administrator  is  not  bound  to  interpose 
the  general  statute  of  limitations  in  bar  of  a  demand  against 
the  decedent,  which  is  otherwise  well  founded,  and  his  omis- 
sion to  do  so  does  not  render  him  liable  for  waste.  (/)     And 

(a)  Stebbins  v.  Smith,  4  Pick.  97.  See  also  Jones  v.  Richardson,  5  Met. 
247.     Alger  v.  Col  well,  2  Gray,  404.     Colwell  v.  Alger,  5  Gray,  67. 

(b)  Shepherd  v.  Young,  8  Gray,  152. 

(c)  By  Shaw,  C.  J.  10  Pick.  373. 

(d)  Brown  v.  Anderson,  13  Mass.  201.  Dawes  v.  Shed,  15  Mass.  6.  Em- 
erson V.  Thompson,  16  Mass.  429.  Lamson  v.  Schutt,  4  Allen,  360.  Terry  r. 
Briggs,  12  Gush.  319.  Wiggins  v.  Adm'r  of  Lovering,  9  Missouri,  259.  Heard 
V.  Meader,  1  Greenl.  156.     And  see  remarks  of  Jackson,  J.   13  Mass.  165. 

(e)  Heath  v.  Wells,  5  Pick.  140  and  previous  decisions  there  cited.  Thayer 
V.  Hollls,  3  Met.  369.  In  this  last  case  the  executor,  who  obtained  the  license, 
was  one  of  the  testator's  heirs,  and  it  was  held  that  the  sale  under  the  license 
was  valid  as  against  him  and  his  heirs. 

(/)  By  Lord  Hardwicke,  1  Atk.  526.  By  Lord  Eldon,  15  Ves.  498.  By 
Lord  Lyndhurst,  3  Y.  &  Coll.  Exch.  211,  note.  By  Wood,  Vice- Chancellor, 
4  Kay  &  Johns.  169,  denying  a  dictum  to  the  contrary  by  Bayley,  J.  in  9 
Dowl.  &  Ryl.  43.  By  Jackson,  J.  13  Mass.  164.  16  Mass.  431.  By 
Coulter,  J.  4  Barr,  152.  1  Eq.  Cas.  Abr.  305,  pi.  13.  Miller  v.  Dorsey, 
9  Maryl.  317.    Batson  v.  Murrell,  10  Humph.  301.     Smith's  Estate,  1  Ashm. 


PARTNERS.  141 

if  he  is  a  creditor  of  the  decedent,  inasmuch  as  he  cannot 
have  an  action  to  recover  his  claim,  he  is  allowed,  upon  a  set- 
tlement and  distribution  of  the  estate,  to  retain  the  amount 
justly  due  to  him,  though  it  is  barred  by  the  statute,  (a)  The 
contrary,  however,  was  decided  in  Rogers  v.  Rogers,  3  Wend. 
503,  where  the  claim  was  barred  by  the  statute  during  the 
decedent's  life.  And  where  a  residuary  legatee  brought  a 
suit  in  chancery  for  the  purpose  of  having  the  testator's 
property  duly  administered,  and  the  trusts  of  the  will  ex- 
ecuted, and  the  court  decreed  that  an  account  of  the  debts 
should  be  taken  by  a  master,  and  a  creditor  offered  to  prove 
a  claim  that  was  barred  before  the  testator's  death,  and  the 
executor  did  not  object  to  the  proof  thereof,  but  the  residuary 
legatee  interposed  the  objection,  and  the  master  disallowed 
the  claim,  it  was  decided,  upon  the  creditor's  appeal,  that 
when  there  has  been  a  decree  taking  possession  of  a  de- 
cedent's estate  and  vesting  it  in  the  court  for  distribution, 
and  the  accounts  are  directed  to  be  taken  by  a  master  and 
the  assets  distributed  by  him,  the  objection  that  a  claim  is 
barred  by  the  statute  of  limitations  may  be  taken  by  any  per- 
son interested,  (b)  To  the  like  effect  are  the  decisions  in 
Ballon  V.  Murrell,  10  Humph.  301,  and  in  Hoch's  Appeal,  21 
Penn.  State  Rep.  280,  as  to  the  right  of  creditors  and  legatees 
to  prevent  an  executor  or  administrator  from  retaining  assets 
to  pay  his  own  claim  which  is  barred  by  the  statute. 

By  the  law  of  New  York,  as  stated  in  Willard  on  Executors, 

352.  Ritter's  Appeal,  23  Penn.  State  Eep.  95.  Hodgdon  v.  White,  11 IST. 
Hamp.  208.  See  contra,  Patterson  v.  Cobb,  4  Florida,  481,  and  Tunstall  v. 
Pollard's  Adm'r,  11  Leigh,  1,38. 

(a)  Matthews  on  Ex'rs,  (Amer.  ed.)  66.  2  Williams  on  Ex'rs,  (4th  Amer. 
ed.)  903,  904.  1  Lomax  on  Ex'rs,  (^d  ed.)  654.  Stahlscmidt  v.  Lett,  1  Smale 
&  Giffard,  415.  Hill  v.  Walker,  4  Kay  &  Johns.  166.  Knight's  Distribu- 
tees V.  Godbolt,  7  Alab.  304. 

(6)  Shewen  v.  Vanderhost,  1  Russ.  &  Myl.  347  and  2  ib.  75.  Warren  c. 
Paff,  4  Bradford,  265.  See  also  Peck  v.  Wheaton's  Heirs,  Mart.  &  Yerg. 
360.  Moore  v.  Hardison,  10  Texas,  467.  In  Alabama,  a  license  will  not  be 
granted  to  an  administrator  to  sell  the  intestate's  land  to  pay  his  debts  that 
are  barred  by  the  statute  if  the  heirs  object.  Heirs  of  Bond  v.  Smith,  2  Alab. 
660. 


142  LAW   OF   CONTRACTS. 

317,  (citing  Willcox  v.  Smith,  26  Barb.  316  and  other  cases, 
and  the  revised  statutes  of  that  State)  the  admission,  by  an 
executor  or  administrator,  of  a  claim  against  the  decedent, 
which  is  barred  by  the  statute,  shall  not  be  deemed  to  re- 
vive the  same,  so  as  in  any  way  to  affect  his  real  estate. 
And  see  opinion  of  Chancellor  Kent,  in  6  Johns.  Ch.  373. 

It  has  long  been  held  that  an  executor  or  administrator,  by 
an  express  promise  to  pay  a  claim  against  the  decedent,  to 
which  the  statute  of  limitations  might  be  well  pleaded  in 
bar,  may  charge  his  estate  with  payment.  And  while  a 
promisor's  mere  acknowledgment  that  a  claim  once  due 
was  unpaid  was  regarded  as  sufficient  evidence  of  a  new 
promise,  and  was  held  to  take  a  case  out  of  the  operation  of 
the  statute,  it  also  seems  to  have  been  held  by  some  of  the 
courts  in  this  country,  that  such  mere  acknowledgment  by 
his  executor  or  administrator  would  have  the  like  effect,  (a) 
But  since  the  effect  formerly  given  to  such  bare  acknowledg- 
ment has  almost  universally  ceased  to  be  allowed,  and  only 
his  express  promise,  or  what  is  tantamount,  will  now  charge 
him,  it  is  believed  that  his  personal  representative  cannot  bind 
his  estate  in  any  other  manner,  (b)  By  the  English  law,  noth- 
ing short  of  an  express  promise  of  payment,  by  such  repre- 
sentative, will  avoid  the  statute  bar.  (c)  It  is  also  there  held, 
though  there  are  extrajudicial  dicta  to  the  contrary,  that  if  there 
are  two  or  more  executors  or  administrators,  the  express  prom- 
ise of  all  is  necessary  to  the  avoidance  of  the  statute,  (d)  In 
this  country  there  are  cases  in  which  the  promise  of  one  only 
is  held  sufficient,  (e)  and  there  are  cases  to  the  contrary.  (/) 

(a)  See  the  Treatises  on  the  Statute  of  Limitations. 

(6)  Oakes  v.  Mitchell,  15  Maine,  360.  Bunker  v.  Athearn,  35  Maine, 
364.  Peck  v.  Botsford,  7  Conn.  172.  Knox  v.  McCall's  Adm'r,  1  Brevard, 
531. 

(c)  Tullock  V.  Dunn,  Ry.  &  Mood.  416.  2  "Williams  on  Ex'rs,  (4th  Amer. 
ed.)  1659.     But  see  opinion  of  Booth,  C.  J.  in  4  Harrington,  373,  374. 

(d)  Ry.  &  Mood,  supra.     Scholey  v.  Walton,  12  Mees.  &  Welsh.  514. 

(e)  2  Haywood,  7.  Emerson  v.  Thompson,  16  Mass.  429.  Hord  v.  Lee,  2 
Monroe,  131  and  4  ib.  36.  Head's  Ex'r  i'.  Manners'  Adm'rs,  5  J.  J.  Marsh. 
255.  Johnson  v.  Beardslee,  15  Johns.  3.  Lomax  u.  Spierin,  Dudley,  (S.  C.) 
865.     By  Nelson,  J.  19  Wend.  493. 

(/)  See  5  Hill,  239.     14  Wend.  90.     5  Barb.  407.     3  Alab.  599. 


EXECUTORS   AND   ADMINISTRATORS.  143 

And  where  one  of  two  joint  and  several  makers  of  a  prom- 
issory note  died,  and  his  executor  paid  a  part  thereof  (which 
had  the  effect  of  a  new  promise,)  it  was  held  that  this  did  not 
take  the  debt  out  of  the  statute,  as  to  the  survivor,  (a)  But 
part  payment  by  an  administrator  takes  a  case  out  of  the 
statute,  as  to  the  intestate's  estate,  [b) 

A  distinction  is  made  in  some  courts  between  a  claim 
against  a  decedent  which  is  barred  by  the  statute,  at  the  time 
of  his  death,  and  a  claim  not  then  barred ;  and  it  is  decided 
that  though  the  executor's  or  administrator's  promise  wiU 
avoid  the  statute  bar  in  the  latter  case,  it  wiU  not  in  the  former. 
It  was  on  this  distinction  that  the  court  in  Pennsylvania  de- 
cided the  two  cases  of  Fritz  v.  Thomas,  1  Whart.  66  and 
Forney  v.  Benedict,  5  Barr,  225.  (c)  And  in  Richmond's  Case, 
2  Pick.  567,  it  was  decided  that  an  administrator  could  not 
revive  a  debt  which  the  intestate  owed  him,  but  which  was 
barred  when  the  intestate  died ;  because  he  could  not  show 
a  renewal  of  the  promise. 

In  Fritz  v.  Thomas,  supra^  where  the  debt  was  barred  when 
the  intestate  died,  it  was  decided  that  an  administrator,  sued 
in  his  capacity  as  such,  for  a  debt  of  the  intestate,  might 
plead  the  statute  of  limitations  in  bar  of  the  action,  and 
successfully  defend,  although  he  had  made  such  acknowledg- 
ment of  the  debt  as  would,  if  made  by  the  intestate,  have 
taken  the  case  out  of  the  statute.  And  see  Scott  v.  Hancock, 
13  Mass.  165  and  Haselden  v.  Whitesides,  2  Strobhart,  353. 
Sanders  v.  Robertson,  23  Miss.  389.  If  an  administrator  were 
sued  personally  on  a  promise  to  pay  a  debt  thus  barred,  he 

(a)  Slater  v.  Lawson,  1  B.  &  Ad.  396.  See  also  Atkins  v.  Tredgold,  2 
Barn.  &  Cres.  23  and  3  Dowl.  &  Ryl.  200.  Smith  v.  Townsend,  9  Richard- 
son, 44.  Root  V.  Bradley,  1  Kansas,  437.  Disborough  v.  Heirs  of  Bidle- 
man,  Spencer,  275  and  1  Zab.  677. 

(6)  Niemcewicz  v.  Bartlett,  13  Ohio,  271.     Foster  v.  Starkey,  12  Cush.  324. 

(c)  See  also  6  Foster,  497.  1  Harrington,  209.  17  Georgia,  96.  Har- 
per, 305.  Dudley  (S.  C.)  118.  11  Smedes  v.  Marsh.  20.  4  Florida,  487. 
10  Texas,  467.  In  Ramon  Assets,  (Amer.  ed.)  296,  the  law  of  England  is  thus 
stated :  "  An  executor  may,  it  is  certain,  take  a  case  out  of  the  statute  of  lim- 
itations, by  his  acknowledgment  of,  and  promise  to  pay,  the  particular  debt 
sought  to  be  recovered,  out  of  the  assets  ;  and  whether  the  debt  was  barred 
at  the  testator's  death,  or  six  years  have  expired  since  that  time." 


144  LAW   OP   CONTRACTS. 

could  not  be  charged,  unless  his  promise  should  be  shown  to 
have  been  made  on  some  consideration  sufficient  to  make  the 
debt  his  own. 

It  is  the  general  rule  that  executors  and  administrators  are 
liable,  so  far  as  they  have  assets,  on  all  personal  contracts  of 
the  decedent,  upon  which  he  might  have  been  sued  in  his  life- 
time, and  also  on  such  contracts  of  his,  for  the  doing  of  future 
acts,  as  are  not  broken  until  after  his  death,  (a)  But  when 
his  contract  requires,  from  its  nature  or  for  other  reasons, 
to  be  performed  by  him  or  to  him  personally ;  as  if  he  prom- 
ises to  marry,  or  compose  a  book  or  make  a  painting,  or  en- 
gages to  pay  another,  during  a  specified  time,  for  attending 
on  his  person,  and  for  no  other  service,  and  dies  before  that 
time  expires,  his  personal  representatives  are  held  liable  for 
breaches  of  his  contract  during  his  life,  and  not  for  breaches 
thereof  after  his  death.  His  death  ends  such  contracts,  and 
those  who  contracted  with  him  can  recover  of  his  represen- 
tatives only  joro  rata  damages,  or  pro  rata  compensation,  (b) 

Personal  representatives  of  a  decedent  are  liable  for  rea- 
sonable expenses  of  his  funeral.  The  law  raises  a  promise  by 
them  to  pay  such  expenses,  though  the  funeral  may  not  have 
been  ordered  by  them,  but  by  others,  (c)     And  if  they  occupy 

(a)  Bac.  Ab.  Executors  and  Administrators,  P.  Matthews  on  Ex'rs, 
(Amer.  ed.)  c.  xiv.  Toller  on  Ex'rs,  (4tli  ed.)  462.  2  Williams  on  Ex'rs, 
(4th  Amer.  ed.)  1464  Sf  seq.  Wentworth  v.  Cox,  10  Ad.  &  El.  42  and  2 
P.  &  Dav.  251.  Davis  v.  Pope,  12  Gray,  193.  Parker  v.  Coburn,  10 
Allen,  82. 

(6)  Addison  on  Contracts,  (2d  Amer.  ed.)  1061.  2  Williams  on  Ex'rs, 
(4th  Amer.  ed.)  1467.  2  Redfield  on  Wills,  253.  Fenton  v.  Clark,  1 1  Verm. 
563.  Knight  v.  Bean,  22  Maine,  536.  Dickinson  v.  Calahan,  19  Penn.  State 
Rep.  227.  White's  Ex'r  v.  Commonwealth,  39  ib.  167.  Harrison  v.  Conlan, 
10  Allen,  85. 

(c)  2  Bl.  Com.  508.  Ram  on  Assets,  c.  xix.  Matthews  on  Ex'rs, 
(Amer.  ed.)  29,  30.  2  Williams  on  Ex'rs,  (4th  Amer.  ed.)  829-832.  2 
Redfield  on  Wills,  224-228.  Tugwell  v.  Heyman,  3  Campb.  298.  Rogers  v. 
Price,  3  Y.  &  Jcrv.  28.  Lucy  v.  Walrond,  3  Bing.  N.  R.  841,  5  Scott,  46  and 
8  Hodges,  215.  Hapgood  v.  Houghton,  10  Pick.  156.  Parker  v.  Lewis,  2 
Dev.  21.  In  3  Nev.  &  Man.  518,  519,  Patteson,  J.  said :  "  It  has  been  de- 
cided, by  several  cases,  that  an  executor  is  liable  upon  an  implied  promise,  at 


EXECUTORS   AND    ADMINISTRATORS.  145 

real  estate  that  was  demised  to  him  for  a  term  longer  than  he 
lived,  they  are  deemed  his  assignees,  and  are  liable  for  the 
rent,  (a)  In  this  country  an  executor  is  liable,  after  demand, 
for  legacies,  whether  pecuniary  or  specific,  bequeathed  by  the 
testator,  (b)  But  in  England  an  action  at  law  cannot  be 
maintained  for  the  recovery  of  a  legacy,  (c)  though  it  was 
formerly  held  otherwise,  (d) 

The  question,  whether  judgment  against  an  executor  or 
administrator  should  be  de  bonis  propriis  or  against  the  prop- 
erty of  the  decedent,  is  now  decided  on  a  rule  different  from 
that  which  once  prevailed.  2  Redfield  on  Wills,  c.  xi.  2 
Williams  on  Ex'rs,  (4th  Amer.  ed.)  1507  Sf  seq.  It  seems  to 
have  been  formerly  held,  that  when  he  was  sued  as  executor 
or  administrator,  (in  his  representative  capacity,)  a  judgment 
recovered  against  him  must  be  against  the  property  of  the  de- 
cedent ;  and  that  when  he  was  sued  in  his  own  right,  as  for  a 
demand  on  him  personally,  (though  it  related  to  his  transac- 
tions in  his  representative  character,)  and  not  as  executor  or  ad- 
ministrator, eo  «ow me,  judgment  must  be  de  bonis  propriis.  See 
opinion  of  Lord  Mansfield,  Cowp.  289.  5  Binn.  33.  9  Leigh, 
357.  It  is  now  held  that  he  may  be  charged  de  bonis  propriis, 
though  he  is  sued  in  his  representative  capacity,  when  the 
nature  of  the  debt  is  such  as  necessarily  made  him  personally 
liable ;  as  where  the  declaration  is  against  him  for  money  had 

common  law,  to  pay  reasonable  expenses  for  the  funeral  of  his  testator,  where 
no  other  person  is  liable  upon  an  express  contract,  although  he  does  not  give 
orders  for  it.  But  there  is  no  case  which  goes  the  length  of  deciding  that  if 
the  funeral  be  ordered  by  a  person  to  whom  credit  is  given,  the  executor  is 
liable  at  law."  And  in  12  C.  B.  N.  S.  347,  Willes,  J.  is  reported  to  have  said 
that  "  an  executor  is  only  liable  when  he  has  assets,  or  when  he  gives  the 
order  himself."     And  see  1  Hawks,  394. 

(a)  Buck  V.  Barnard,  1  Show.  348  and  Holt,  75.  Eubery  v.  Stevens,  4  B. 
&  Ad.  241  and  1  Nev.  &  Man.  182.     Claydon  on  Land,  and  Ten.  123,  124. 

(6)  Clark  v.  Herring,  5  Binn.  33.  Kayser  v.  Disher,  9  Leigh,  357.  Miles 
V.  Boyden,  3  Pick.  213.  Jones  v.  Richardson,  5  Met.  247.  Colwell  v.  Alger, 
5  Gray,  67.  Worten  u.  Howard,  2  Smedes&  Marsh.  527.  McNeil  v.  Quince's 
Adm'rs,  2  Haywood,  153.  Payne  v.  Smith,  12  N.  Hamp.  34.  Lamb  v.  Smith, 
1  Root,  419.     Smith  v.  Lambert,  30  Maine,  137. 

(c)  Decks  V.  Strutt,  5  T.  R.  690. 

(d)  Hawkes  v.  Saunders,  Cowp.  289. 

10 


146  LAW   OF    CONTRACTS. 

and  received  by  him  as  executor,  or  for  money  lent  to  him  as 
such,  or  on  an  account  stated  of  money  received  by  him  per- 
sonally. By  Gibbs,  C.  J.  7  Taunt.  585,  586.  It  appears  to 
be  the  present  law,  that  whenever  the  consideration  of  his 
alleged  promise  (express  or  implied)  arose  after  the  decedent's 
death,  he  is  to  be  charged  de  bonis  propriis,  whether  he  is  sued 
personally,  or  as  executor  or  administrator :  As  on  a  count 
for  goods  sold  to  him,  as  such,  or  work  done  for  him,  as  such, 
or  for  expenses  of  the  decedent's  funeral,  (a) 

It  is  not  a  necessary  consequence  of  a  judgment  de  bonis 
propriis,  that  the  defendant  is  not  entitled  to  indemnity  from 
the  decedent's  estate.  In  all  cases,  where  justice  requires  it, 
he  will  doubtless  be  allowed  repayment  from  the  estate,  on  a 
settlement  of  his  account  of  admini5\tration,  by  the  court  to 
which  such  account  must  be  rendered,  (b) 

By  the  statute  of  frauds,  both  in  England  and  in  the  several 
States  of  the  Union,  no  action  shall  be  brought  whereby  to 
charge  any  executor  or  administrator  upon  any  special  prom- 
ise to  answer  damages  out  of  his  own  estate,  unless  the 
agreement  upon  which  such  action  shall  be  brought,  or  some 
memorandum  or  note  thereof,  shall  be  in  writing,  and  signed 
by  the  party  to  be  charged  therewith,  or  by  some  person  there- 
unto by  him  lawfully  authorized. 

In  Browne  on  Statute  of  Frauds,  §  186,  the  law  is  thus 
stated :  "  The  special  promise  intended  by  the  statute  is  such 
as  raises  an  obligation  to  pay  out  of  the  promisor's  own  estate. 
Whether  a  bare  promise  by  an  executor  or  administrator  to 
pay  a  debt  of  the  decedent  will  be  regarded  as  a  promise  to 
answer  from  his  own  estate,  or  not,  seems  to  depend  upon 
his  having  or  not  having  assets  from  the  estate  at  the  time 
of  promising.      If  he  have  not  assets,  his  promise  must  be 

(a)  Lu«comb  v.  Barrett,  5  Gray,  405.  Conner  v.  Shew,  3  JMces.  &  Welsb. 
350.  Livermore  v.  Rand,  6  Foster,  85.  In  Hapgood  v.  Houcrhton,  10  Pick. 
154,  judgment  de  bonis  propriis  was  ordered  in  a  suit  against  ^n  executor, 
where  one  of  the  counts  was  on  his  promise  to  pay  expenses  of  the  testator's 
funeral.     But  see  remark  of  Thomas,  J.  5  Gray,  405. 

(h)  5  Gray,  supra.   22  Conn.  323.   9  Co.  94  a.   2  Dickens,  587.  3  Madd.  275. 


EXECUTORS  AND   ADMINISTRATORS.  147 

fulfilled,  if  at  all,  out  of  his  own  estate,  and  the  statute  would 
require  it  to  be  in  writing.  If  he  have  assets,  he  would  have 
a  right  to  charge  them  with  damages  recovered  against  him 
upon  such  promise ;  and  so,  though  the  judgment  might  be 
against  him  personally,  the  damages  would  ultimately  be  an- 
swered out  of  the  estate  of  the  decedent,  not  out  of  his  own, 
and  the  statute  would  not  require  it  to  be  in  writing."  And 
in  Stebbins  v.  Smith,  4  Pick.  97,  where  an  executor  had  given 
bond  to  pay  the  testator's  debts  and  legacies,  (which,  as  stated 
ante,  140,  is  an  admission  of  assets,  that  he  is  estopped  to 
deny)  it  was  held  that  his  oral  promise,  made  on  a  considera- 
tion sufficient  to  bind  him  personally,  was  not  required  by  the 
statute  to  be  in  writing ;  and  judgment  was  rendered  against 
him  on  that  oral  promise.  So  in  Pratt  v.  Humphrey,  22  Conn. 
317,  where  administrators  were  sued  on  a  promise,  made  on  a 
consideration  like  that  in  4  Pick,  supra,  and  they  pleaded  in 
bar  that  their  promise  was  not  made  in  writing,  it  was  held, 
on  demurrer  to  the  plea,  that  it  was  insufficient  as  a  bar,  be- 
cause it  was  not  therein  averred  that  they  had  not  assets. 
See  also  Templeton  v.  Bascom,  33  Verm.  132. 

A  special  promise  by  an  executor  or  administrator  to  pay  a 
debt  of  the  decedent,  though  made  in  writing,  is  void,  unless 
made  on  a  sufficient  consideration.  Rann  v.  Hughes,  4  Bro. 
P.  C.  (2d  ed.)  27  and  7  T.  R.  350,  note,  (a)  And  it  is  said  in  2 
Williams  on  Executors  (4th  Amer.  ed.)  1517, that  "if  an  exec- 
utor or  administrator  promises,  in  writing,  that  in  consideration 
of  having  assets,  he  will  pay  a  particular  debt  of  the  testator 
or  intestate,  he  may  be  sued  on  this  promise,  in  his  individual 
capacity,  and  the  judgment  against  him  will  be  de  bonis  pro- 
priisy  And  so  it  was  held  in  Hawkes  v,  Saunders,  Cowp. 
289,  as  to  an  executor's  promise  to  pay  a  legacy.  But  in 
Rann  v.  Hughes,  in  an  action  against  an  administratrix,  it  was 
decided,  (on  a  motion  in  arrest  of  judgment  because  the  dec- 
laration did  not  show  sufficient  matter  to  warrant  a  judg- 
ment against  her  in  her  personal  capacity,)  that  a  promise 
by  her,  in  consideration  of  assets  left  by  the  intestate,  was 

(a)  See  also  Ten  Eyck  v.  Vanderpoel,  8  Johns.  120.     Davis  v.  French,  20 
Maine,  21,     Walker  v.  Patterson,  36  Maine,  273. 


148  LAW   OF    CONTRACTS. 

insufficient  and  void,  (a)  That  case  has  often  been  supposed 
to  be  inconsistent  with  Atkins  v.  Hill,  Cowp.  284,  and  Hawkes 
V.  Saunders,  supra ;  but  when  duly  examined,  it  will  be  found 
entirely  consistent  with  them.  See  the  distinction  between 
the  cases,  as  stated  by  Lord  Mansfield,  Cowp.  291. 

Actions  may  be  maintained  by  executors  and  administra- 
tors on  contracts  made  by  them  concerning  the  decedent's 
affairs,  when  by  such  contracts  the  nature  of  the  debt  due  to 
him  is  changed  ;  as  when  they  take  security  to  themselves 
for  such  debt,  [b)  or  recover  judgment  against  the  debtor,  (c) 
So,  of  course,  on  contracts  of  sale,  made  by  them,  of  the  de-  ' 
cedent's  goods,  [d)  (Questions  of  pleading,  that  are  generally 
raised  in  this  class  of  cases,  are  not  here  considered  ;  to  wit, 
whether  the  actions  should  be  brought,  by  executors  or  ad- 
ministrators, in  their  personal  or  in  their  representative  ca- 
pacity, and  whether  two  or  more  counts  in  the  declaration  are 
rightly  joined),  (e)  So  if  they  complete  the  performance  of  a 
contract  made  by  the  decedent,  which  he  left  unfinished,  they 
may  maintain  an  action  to  recover  payment.  (/)  If  an  ex- 
ecutor or  administrator,  believing  the  decedent's  estate  to  be* 
solvent,  pays  a  debt  before  the  time  when  he  could  be  sued 
therefor,  and  it  is  afterwards  found  that  the  estate  is  insolvent, 
he  may  recover  back  so  much  of  the  money  so  paid  by  him  as 
exceeds  the    amount  awarded   to  the   creditor  on  the   final 

(a)  The  declaration,  in  7  T.  R.  350,  note,  did  not  allege  that  assets  came  ' 
to  the  defendant's  hands. 

(h)  Hosier  v.  Arundell,  3  Bos.  &  Pul.  11.  Partridge  v.  Court,  5  Price,  412. 
Kendall  v.  Lee,  2  Pennysl.  482.  Helm  v.  Van  Vleet,  1  Blackf.  342.  Gayle 
V.  Ennis,  1  Texas,  184.     2  Redfield  on  Wills,  192-194. 

(c)  Crawford  v.  Whittal,  1  Doug.  4,  note.  Talmage  v.  Chapel,  16  Mass. 
71.     Biddle  v.  Wilkins,  1  Peters,  686.     1  Lomax  on  Exr's,  (2d  ed.)  .524. 

{d)  Cowell  V.  Watts,  6  East,  405.  Aspinall  v.  Wake,  10  Bing.  51  and  3 
Moore  &  Scott,  423.  Kline  v.  Guthart,  2  Pennsyl.  491,  492.  By  Lord  Ten- 
terden,  9  Barn.  &  Ores.  669. 

(e)  See  Bac.  Ab.  Ex'rs  and  Adm'rs,  O.  2  Selw.  N.  P.  (11th  ed.)  804, 
(7th  Amer.  ed.)  803,  804,  note.  Chit,  on  Con.  (10th  Amer.  ed.)  296,  297. 
2  Lomax  on  Ex'rs,  (2d  ed.)  597  §•  .s-e^.     2  Redfield  on  Wills,  183,  184. 

(/)  2  Redfield  on  Wills,  182,  183.  Crosthwaite  v  Gardner,  18  Ad.  &  EI. 
N.  S.  640.     Sullivan  v.  Murray,  Jones  &  Carey,  34. 


EXECUTORS   AND    ADMINISTRATORS.  149 

settlement  of  the  estate  under  the  proceedings  prescribed  by- 
statute  when  the  estate  of  a  deceased  person  is  insolvent,  {a) 

In  1  Williams  on  Executors,  (4th  Amer.  ed.)  664,  it  is  said 
that  "  with  respect  to  such  personal  actions  as  are  founded 
upon  any  obligation,  contract,  debt,  covenant,  or  other  duty, 
the  general  rule  has  been,  from  the  earliest  times,  that  the 
right  of  action,  on  which  the  testator  or  intestate  might  have 
sued  in  his  lifetime,  survives  his  death  and  is  transmitted  to 
his  executor  or  administrator."  (b)  And  though  a  contract  with 
the  decedent  may  not  be  broken  until  after  his  death,  his  per- 
sonal representative  may  maintain  an  action  for  the  breach 
of  it ;  as  on  a  note  not  payable,  or  on  a  bond  of  which  the 
condition  is  not  broken,  before  the  decedent  died,  (c) 

It  has  long  been  held  by  the  English  courts  of  chancery 
that  the  personal  representative  of  a  mortgagee  of  real  estate 
is  entitled  to  the  mortgage  money  ;  (d)  and  that,  if  it  be  paid 
to  the  heir  of  the  mortgagee,  such  representative  may  recover 
it  from  him.  (e)  And  this  doctrine  is  applied  and  enforced  by- 
action  at  law,  under  the  statute  provisions  of  some  of  the 
States  of  the  Union.  In  Massachusetts,  and  in  several  of  the 
other  States,  (f)  it  is  provided  by  statute,  that  the  personal 
representative  of  a  mortgagee  may  take  possession  of  the 
mortgaged  premises,  or  maintain  an  action  to  recover  them, 
as  the  decedent  might  have  done,  if  living,  (g-)      And  after 

(a)  Walker  v.  Hill,  17  Mass.  380.  WalkeA.  Bradley,  3  Pick.  261.  Bliss 
V.  Lee,  17  Pick.  83.  Heard  v.  Drake,  4  Gray,  514.  Richards  v.  Nightin- 
gale, 9  Allen,  149.     And  see  Rogers  v.  Weaver,  5  Ohio,  536. 

(&)  See,  as  to  an  action  for  breach  of  a  contract  to  marry,  Chamberlain  v. 
Williamson,  2  M.  &  S.  408.  Stebbins  v.  Palmer,  1  Pick.  71.  Smith  v. 
Sherman,  4  Cush.  408.  Lattimore  v.  Simmons,  13  Serg.  &  R.  183.  1  Wil- 
liams on  Ex'rs,  (4th  Amer.  ed.)  677,  682. 

(c)  Toller  on  Ex'rs,  (4th  ed.)  436. 

{d)  Patch  on  Mortg.  146.  Fisher  on  Mortg.  §  224.  Ram  on  Assets, 
(Amer.  ed.)  130.  1  Williams  on  Ex'rs,  (4th  Amer.  ed.)  574,  575.  Saxton 
Ch.  18. 

(e)  Tabor  v.  Tabor,  3  Swanst.  636. 

(/■)   See  1  Washburn  on  Real  Property,  (1st  ed.)  534,  (2d  ed.)  574. 

ig)  Smith  o.  Dyer,  16  Mass.  18,  23.  Fay  v.  Cheney,  14  Pick.  399.  Taft 
V.  Stevens,  3  Gray,  504.  Dewey  v.  Van  Deusen,  4  Pick.  19.  By  statute  in 
Massachusetts  (Rev.  Sts.  c.  65,  §  13,  Gen.  Sts.  c.  96,  §  11,)  when  an  executor 


150  LAW  OF   CONTRACTS. 

having  obtained  judgment,  and  possession  for  foreclosure,  he 
may  maintain  trespass  against  the  heir  for  cutting  and  carry- 
ing away  wood  and  timber  from  the  mortgaged  premises,  {a) 
So  if  he  levy  on  land  to  satisfy  a  judgment  recovered  by  him 
for  a  debt  due  to  the  decedent,  he  may  maintain  trespass  for 
an  ulawful  entry  on  the  land,  while  it  is  under  his  adminis- 
tration, [b) 

As  to  covenants  in  conveyances  of  real  estate,  termed  cov- 
enants real,  the  decisions  are  not  uniform  respecting  the  au- 
thority of  an  executor  of  the  grantee  to  maintain  an  action 
for  the  breach  of  them.  When  the  breach  and  the  actual 
damage  arising  therefrom  both  occur  in  the  lifetime  of  the 
testator,  the  action  is  properly  brought  by  the  executor,  (c) 
But  in  Kingdon  v.  Nottle,  1  M.  &  S.  355,  it  was  decided  that 
an  executor  could  not  maintain  an  action  on  a  covenant  that 
the  grantor  was  seized  in  fee  and  had  a  right  to  convey,  with- 
out showing  some  special  damage  to  the  testator  in  his  life- 
time. It  was  there  said  by  Bayley,  J.,  that  "  the  testator 
might  have  sued  in  his  lifetime ;  but  having  forborne  to  sue, 
the  covenant  real  and  the  right  of  suit  thereon  devolved,  with 
the  estate,  upon  the  heir."  And  it  was  afterwards  decided, 
(4  M.  &  S.  53),  that  the  devisee  of  the  testator  might  main- 
tain an  action  for  the  breach  of  those  covenants ;  that  though 
they  were  brojken  in  the  testator's  lifetime,  yet  it  was  a  con- 
tinuing breach  in  the  ti«ne  of  the  devisee.  And  this  doctrine 
has  been  adopted  in  Indiana,  Ohio,  and  Missouri,  [d)     But, 

or  administrator  recovers  judgment  for  any  debt  due  to  the  decedent  and 
levies  execution  on  real  estate,  he  shall  be  seized  thereof  in  trust  for  the  same 
persons  who  would  have  been  entitled  to  the  money,  if  the  judgment  had 
been  satisfied  in  money ;  and  the  estate  so  taken  in  execution  shall  be  con- 
sidered as  personal  assets,  and  shall  be  accounted  for  as  such,  by  the  executor 
or  administrator ;  and  if  redeemed,  the  money  shall  be  received  by  him,  and 
he  shall  thereupon  release  the  estate, 
(rt)  Palmer  v.  Stevens,  11  Cush.  147. 

(b)  Smithy.  Smith,  11  N.  Hamp.  459.  See  Tebbetts  v.  Estes,  52  Maine, 
566. 

(c)  Lucy  V.  Levington,  2  Lev.  26  and  1  Vent.  175.  Cunningham  v.  Scoul- 
lar,  4  Allen,  (N.  B.)  385. 

(jl)  Martin  v.  Baker,  5  Blackf  232.     Backus's  Adm'rs  v.  McCoy,  3  Ohio, 


EXECUTOES   AND    ADMINISTRATORS.  151 

as  said  by  Mr.  Rawle,  in  his  Treatise  on  the  Law  of  Cov- 
enants for  Title,  (3d  ed.)  342,  "  the  weight  of  American  au- 
thority is  in  favor  of  the  position,  that  the  covenant  for  seizin, 
being  broken,  if  at  all,  at  the  instant  of  its  creation,  is  thereby 
turned  into  a  mere  right  of  action  incapable  of  assignment, 
and  consequently  of  being  exercised  by  any  but  the  cove- 
nantee or  his  personal  representative."  And  so  are  the  decis- 
ions, cited  by  him,  in  Vermont,  Massachusetts,  Connecticut, 
New  York,  New  Jersey,  North  Carolina,  Kentucky,  Wiscon- 
sin, and  Arkansas.  To  which  Illinois  and  Iowa  may  be 
added.  Brady  v.  Spurck,  27  Illinois,  478.  Brandt  v.  Foster,  5 
Iowa,  287.  10  ib.  586.  The  law  was  such  in  Maine,  until 
altered  by  statute,  (a)  Mr.  Rawle  also  says,  page  347,  that 
according  to  the  weight  of  American  authority,  the  law  is  the 
same  as  to  the  covenant  against  incumbrances,  (&)  unless  it 
is  either  so  expressed  in  itself,  or  so  linked  to  another  cove- 
nant, as  to  have  a  prospective  operation,  and  not  be  a  cove- 
nant in  ijrcesenti.  (c) 

An  executor  may  maintain  an  action  on  a  covenant  to  re- 
pair, for  a  breach  thereof  committed  in  the  testator's  life- 
time ;  (d)  and  for  a  breach,  during  the  testator's  life,  of  his 

211.  Devore  u.  Sunderland,  17  ib.  60.  Dickson  v.  Desire's  Adm'r,  23  Mis- 
souri, 164,  165. 

(a)  8  Greenl.  228.  By  the  Revised  Statutes  of  Maine,  (1857,)  page  517, 
"  the  assignee  of  a  grantee,  or  his  executor  or  administrator,  after  eviction  by 
an  older  and  better  title,  may  maintain  an  acnon  on  a  covenant  of  seizin  or 
freedom  from  incumbrance  contained  in  absolute  deeds  of  the  premises  be- 
tween the  parties,  and  recover  such  damages  as  the  first  grantee  might,  upon 
eviction,  upon  filing,  at  the  first  term  in  court,  for  the  use  of  his  grantor,  a 
release  of  the  covenants  of  his  deed  and  of  all  causes  of  action  thereon.  The 
prior  grantee  shall  not,  in  such  case,  have  power  to  release  the  covenants  of 
the  first  grantor,  to  the  prejudice  of  his  grantee."  This  is  a  substitute  for 
the  Revised  Statutes  of  1841,  title  x.  c.  115,  §§  16,  17.  See  24  Maine,  383. 
30  ib.  345.     34  ib.  422.     36  ib.  175. 

(b)  See  Mitchell  v.  Warner,  5  Conn.  497.  Davis  v.  Lyman,  6  ib.  249. 
Clark  V.  Swift,  3  Met.  390.  Garrison  v.  Sandford,  7  Halst.  261.  Jeter  v. 
Glenn,  9  Richardson,  376.     Potter  v.  Taylor,  6  Verm.  676. 

(c)  See  further,  as  to  these  covenants,  4  Kent  Com.  (11th  cd.)  555  Sf  seq. 
1  Smith  Lead.  Cas.  (6th  Amer.  ed.)  201  §•  seq.  2  Washburn  on  Real  Prop- 
erty, (1st  ed.)  650  ^  seq.  (2d  ed.)  706  §■  seq. 

{d)  Morley  v  Polhill,  2  Vent.  56.  Ricketts  v.  Weaver,  12  Mees.  &  Welsh. 
718. 


152  LAW   OF   CONTRACTS. 

lessee's  covenant  not  to  fell  or  lop  timber  trees  excepted  out 
of  the  demise ;  (a)  and  on  the  covenant  of  seizin  and  right 
to  convey,  if  the  testator  was  evicted  ;  no  estate  or  possession, 
in  such  case,  passing  to  the  heir,  [b) 

It  is  a  general  doctrine  of  the  common  law,  that  no  action 
can  be  maintained  by  or  against  an  executor  or  administra- 
tor, in  his  representative  capacity,  in  the  courts  of  any  country 
besides  that  from  which  he  derives  his  authority.  If  he  wishes 
to  maintain  an  action  in  another  country  he  must  obtain  new 
letters  of  administration  in  that  country.  Story  on  Conflict 
of  Laws,  §§  513  Sf  seq.  So  when  an  executor  or  administra- 
tor is  appointed  in  a  State  of  the  Union,  he  cannot  sue  or  be 
sued  in  another  State,  unless  ancillary  administration  is  first 
obtained  there,  (c) 

The  right  of  executors  and  8,dministrators  to  maintain  an 
action  for  torts  done  to  a  decedent,  and  their  liability  to 
actions  for  torts  done  by  him,  are  not  here  stated.  That  right 
and  that  liability  are  wholly  of  statute  origin,  in  England  and 
in  this  country.  And  the  extent  of  them  is  not  the  same  in 
the  statutes  of  the  several  States  of  the  Union.  As  to  the 
right  to  sue  for  torts  done  to  the  decedent,  see  1  Saund.  PI.  & 
Ev.  (2d  ed.)  1113-1115.  2  Selw.  N.  P.  (7th  Amer.  ed.)  799, 
800.     2  Williams  on  Executors  (4th  Amer.  ed.)  667  ^  seq. 

When  there  are  several  executors  or  administrators,  "they 
are  regarded  in  the  light  of  individual  persons,"  and  have  a 
joint  and  entire  interest  in  the  effects  of  the  decedent,  which 
is  incapable  of  being  divided ;    and  the  acts  of  any  one  of 

(a)  Raymond  v.  Fitch,  2  Crompt.  Mees.  &  Rose.  588  and  5  Tyrw.  985. 

1  Williams  on  Ex'rs,  (4tli  Amer.  ed.)  G82,  683. 

(b)  Beck  V.  Barlow,  1  Allen,  (N.  B.)  465,  475.  By  Lord  EUenborougli,  1 
M.  &  S.  363. 

(c)  See  1  Cranch,  259.  3  Mass.  514.  2  Met.  114.  10  Cush.  172.  4 
Mason,  32.      3  Day,  74.     7  Johns.   Ch.  45.      10  Paige,  556.      1  Foster,  382. 

2  Blackf.  247.  1  A.  K.  Marsh.  88.  4  Greene,  (Iowa)  144.  11  Illinois,  211. 
5  Greenl.  262,  26S.  17  Louis.  Ann.  Rep.  15.  24  Georgia,  370.  2  Gill  & 
Johns.  506.  4  Randolph,  158.  A  liter  \n  Pennsylvania,  Alabama  &  Arkan- 
sas.    1  Binn.  63,  64.     23  Alab.  821.     16  Ark.  263. 


EXECUTORS   AND   ADMINISTRATORS.  153 

them,  in  respect  to  the  administration  of  those  effects  are 
deemed  to  be  the  acts  of  all.  {a)  This  is  now  held,  as  well 
in  regard  to  administrators  as  to  executors  ;  the  distinction 
between  them,  which  was  formerly  made,  having  been  over- 
ruled, (b) 

One  of  them  may,  therefore,  sell  the  goods  or  securities 
of  the  decedent,  or  indorse  a  promissory  note,  or  assign  a 
mortgage  made  to  him,  (c)  or  discharge  such  mortgage  ;  (d) 
or  release  a  debt  due  to  him,  (e)  or  submit  a  claim  against 
him  to  referees,  whose  award  will  bind  the  estate.  (/)  But 
when  a  note  is  given  to  two  or  more  executors  jointly,  as  ex- 
ecutors, the  indorsement  of  it,  by  one  of  them  only,  will  not 
transfer  the  title  to  the  indorsee,  (g-)  So  when  a  bond  and 
mortgage  are  given  to  them  jointly,  as  executors,  one  cannot 
assign  them,  (h)  Nor  can  one  bind  the  others  personally,  nor 
bind  the  decedent's  estate,  by  confessing  judgment,  without 
the  others'  consent  or  knowledge,  (i)  Nor  will  the  confession 
by  one  of  a  debt  due  from  the  testator  be  allowed  to  affect 
the  others,  in  a  suit  against  them  to  recover  such  debt,  (j)  As 
to  the  promise  of  one  to  pay  a  claim  barred  by  the  statute  of 
limitations,  see  ante,  142. 

(a)  Shep.  Touch.  484.  Wentworth  ou  Ex'rs,  (Wilson's  ed.)  99.  Com. 
Dig.  Administration,  B.  12.  Toller  on  Ex'rs,  (4tli  ed.)  243,  359.  Bac.  Ab. 
Ex'rs  and  Adm'rs,  D.  1.     2  Williams  on  Ex'rs,  (4tli  Amer.  ed.)  810  Sf-  seq. 

(b)  2  Ves.  Sen.  267,  268.  11  Johns.  21,  22.  1  Wend.  617.  8  Blackf. 
172.     1  McCord,  492.     8  Georgia,  405. 

(c)  Besides  the  books  cited  supra,  see  1  Crompt.  Mees.  &  Rose.  174 
and  4  Tyrw.  563.  7  J.  J.  Marsh.  587.  15  Illinois,  333.  1  Aik.  28.  1  Wend. 
583.     Thomson  (Nov.  Scotia)  265. 

(d)  George  v.  Baker,  3  Allen,  326,  note.  Stuyvesant  v.  Hall,  2  Barb.  Ch. 
151.     Weir  v.  Mosber,  19  Wis.  311. 

(e)  Hoke's  Ex'rs  v.  Fleming,  10  Ired.  263. 

(/)   Grace  v.  Sutton,  5  Watts,  540.     Lank  v.  Kinder,  4  Harrington,  457. 

{g)  Smith  v.  Whiting,  9  Mass.  334.  Sanders  v.  Blain's  Adm'rs,  6  J.  J. 
Marsh.  446.  And  see  Regina  v.  Winterbottom,  1  Denison,  52  and  2  Car.  & 
Kirw.  45.     Contra,  Bogert  v.  Hertell,  4  Hill,  492. 

(h)  Hertell  v.  Bogert,  9  Paige,  52.     See  16  Serg.  &  R.  329. 

(?)  Elwell  V.  Quash,  1  Strange,  20.  Heisler  v.  Knipe,  1  Browne,  319. 
Hall  V.  Boyd,  6  Barr,  267,  270. 

(/)  Hammon  v.  Huntley,  4  Cowen,  493. 


154  LAW   OF  CONTRACTS. 

The  authority  of  one,  or  of  a  majority,  of  several  executors 
to  act  for  all,  did  not,  by  the  common  law,  extend  to  the  sale 
of  land  which  the  testator,  by  his  will,  directed  to  be  sold  by 
them.  On  this  subject,  see  13  Met.  225,  226.  1  Chance  on 
Powers,  239  ^  seq.  Sugden  on  Powers,  (1st  Amer.  ed.)  162 
Sf  seq.  (8th  ed.)  c.  iv.  §§  71-74.  4  Kent  Com.  (11th  ed.)  359 
^  seq.  and  the  American  decisions  there  cited. 

14.    Guardians. 

Guardians  of  minors,  insane  persons,  and  spendthrifts,  have 
not  the  legal  estate  of  their  wards  which  is  placed  in  their 
hands,  but  have  only  a  naked  power  not  coupled  with  an  in- 
terest. The  proper  discharge  of  their  duties  does  not  require 
them  to  subject  themselves  to  any  personal  liability  for  which 
an  action  can  be  maintained  against  them.  The  debts  of  a 
ward  remain  his ;  and  though  he  has  no  power  to  pay  them, 
yet  he,  and  not  the  guardian,  must  be  sued  upon  them,  and 
the  guardian  must  defend  in  the  ward's  name,  and  not  in  his 
own.  10  Allen,  464.  He  may  make  contracts  in  his  own 
name,  as  guardian,  respecting  the  ward's  affairs  ;  but  such 
contracts  bind  himself,  and  not  the  ward  nor  his  estate. 
Hence  if  he  gives  a  note  for  his  ward's  debt,  or  covenants 
for  the  title  to  the  ward's  real  estate,  on  selling  it  under  au- 
thority legally  granted,  he  is  thereby  personally  bound,  {a) 
He  is  not  liable  to  an  action  for  supplies  furnished  to  the  ward 
for  support  and  maintenance,  except  on  an  express  promise 
of  payment ;  (6)  nor  for  the  debts  of  the  ward,  (c)  Nor  is 
he  liable  to  an  action  by  the  ward,  after  the  termination  of  the 
guardianship,  to   recover   money  received  on  a  sale  of  the 

(a)  Thacher  v.  Dinsmore,  5  Mass.  299.  Forster  v.  Fuller,  6  Mass.  58. 
Whiting  V.Dewey,  15  Pick.  428.  Donahue  u.  Emery,  9  Met.  63.  Stevenson 
V.  Bruce,  10  Ind.  397.  Gibson  v.  Irby,  1 7  Texas,  1 74,  1 75.  Young  v.  Lorain, 
11  Illinois,  G41. 

{h)  Cole  V.  Eaton,  8  Cush.  587.  Spring  y.  Woodworth,  4  Allen,  326.  In- 
habitants of  Raymond  V.  Sawyer,  37  Maine,  406.  Penfield  v.  Savage,  2  Conn. 
386.  State  v.  Cook,  12  Ired.  67.  Tucker  v.  McKee,  1  Bailey,  344.  Over- 
ton V.  Beavers,  19  Ark.  623.  See  Hutchinson  v.  Hutchinson,  19  Verm.  437. 
Fessenden  v.  Jones,  7  Jones,  (N.  C.)  14. 

(c)  Conant  v.  Kendall,  21  Pick.  36. 


GUARDIANS.  155 

ward's  property  and  not  paid  to  him.  (a)  In  these  and  like 
cases,  the  claimant's  remedy,  generally,  is  by  action  on  the 
bond  given  by  the  guardian,  conditioned  that  he  shall  rightly 
discharge  his  duties  as  guardian.  It  has,  however,  been  re- 
cently decided  in  Massachusetts,  that  in  a  suit  against  the 
ward,  his  guardian  may  legally  be  summoned  to  answer 
in  the  trustee  (foreign  attachment)  process,  (b)  If  he  advance 
his  own  money  for  the  erection  of  buildings  on  the  ward's 
land,  without  the  order  of  court,  he  cannot  recover  the  amount 
from  his  ward,  (c) 

A  guardian  is  not  answerable  for  a  breach  of  a  covenant, 
in  an  indenture  by  which  he  binds  his  ward  as  an  apprentice, 
that  the  ward  "  shall  faithfully  serve  his  master  and  not 
absent  himself  from  his  service  ; "  such  covenant  being  held 
to  be  that  of  the  ward  only,  (d) 

One  who  has  applied  for  and  obtained  an  appointment  in 
Massachusetts,  as  guardian  of  minor  children  who  have  thence 
been  under  his  care,  with  the  consent  of  their  guardian  ap- 
pointed in  another  state,  may  maintain  an  action  against  him 
for  their  support  and  education,  after  the  time  of  his  own 
appointment,  (e) 

The  rights  and  powers  of  guardians  are  considered,  in  the 
United  States,  as  strictly  local,  and  as  not  entitling  them  to 
exercise  any  authority  over  the  person  or  property  of  their 
wards  in  other  states,  upon  the  same  general  reasoning  and 
policy  which  have  circumscribed  the  rights  and  authorities  of 
executors  and  administrators.  (/) 

(a)  Brooks  u.  Brooks,  11  Cush.  18. 

(J))  Hicks  V.  Chapman,  10  Allen,  463.  But  see  Davis  v.  Drew,  6  N.  Hamp. 
399. 

(c)  Hassard  v.  Rowe,  11  Barb.  22.  See  also  Guy  v.  Dii  Uprey,  16  Cal. 
196. 

(d)  Blunt  V.  Melcher,  2  Mass.  228.  Holbrook  v.  BuUard,  10  Pick.  68. 
Woodruff  V.  Corey,  Pennington,  (2d  ed.)  406.  Ackley  v.  Hoskins,  14  Johns. 
374.  Chapman  v.  Crane,  20  Maine,  172.  Valde  v.  Levering,  2  Rawie,  269. 
Sacket  v.  Johnson,  3  Blackf.  61.  Contra,  Paddock  v.  Higgins,  2  Root,  316 
482.     Hewit  v.  Morgan,  ib.  363.     Clement  v.  Wheeler,  ib.  466. 

(e)  Spring  v.  Woodworth,  2  Allen,  206.  And  see  Pedan  v.  Robb's  Adm'r, 
8  Ohio,  227. 

(/)   Story  on  Conflict  of  Laws,  §§  499,  504,  504  a.     Morrell  v.  Dickey,  1 


156  LAW   OF   CONTRACTS. 

Contracts  between  guardians  and  wards,  made  soon  after 
the  guardianship  ceases,  have  always  been  viewed  with 
jealousy  by  courts  of  chancery;  and  the  interest  of  wards  is 
protected  by  those  courts  against  the  advantage  taken  by 
guardians  of  their  influence  over  those  who  have  been  under 
their  care,  (a)  And  this  is  also  done  in  this  country  by  courts 
of  probate,  and  in  actions  at  law.  (5) 

15.   Corporations. 

Corporations,  like  individuals,  have  power  to  make  con- 
tracts, and  of  course  are  liable  in  law  for  the  breach  of  them. 
One  of  the  incidents  of  these  bodies,  connected  with  the  sub- 
ject of  contracts,  is  the  right  to  have  a  common  seal.  And 
the  old  doctrine  was,  that  they  could  not  act  and  speak  except 
by  their  corporate  seal,  because  they  are  invisible  bodies  and 
incapable  of  manifesting  their  intentions  by  any  personal  or 
oral  discourse.  But  this  doctrine  does  not  now  prevail.  For 
many  purposes,  a  vote  of  a  corporation,  recorded  in  its  books, 
is  allowed  to  have  the  same  effect  which  was  formerly  given 
only  to  its  seal.  Of  late,  and  especially  in  this  country,  where 
corporations  are  greatly  multiplied,  it  has  been  repeatedly  de- 
cided that  they  may  be  bound,  without  either  deed  or  vote, 
by  implication  from  corporate  acts,  as  individuals  may  be.  (c) 
And  the  authority  of  their  agents  to  contract  for  them  may 
be  shown  by  the  like  implication,  {d)     It  followed  from  this 

Johns.  Ch.  153.  Himes  v.  Howes,  13  Met.  80.  Potter  v.  Hiscox,  30  Conn. 
515.     Burnet  v.  Burnet,  12  B.  Monroe,  324. 

(o)  Reeve  Dom.  Rel.  329,  330.  1  Story  on  Eq.  §§  317-319.  Dawson  v. 
Massey,  1  Ball  &  Beatty,  219.  Forbes  v.  Forbes,  5  Gill,  29.  Richardson  v. 
Linney,  7  B.  Monroe,  571.     Fish  v.  Miller,  Hoflman,  267. 

(h)  Wright  V.  Arnold,  14  B.  Monroe,  646.  Sullivan  v.  Blackwell,  28  Miss. 
737.  Kittredge  v.  Betton,  14  N.  Hamp.  401.  Gale  v.  Wells,  12  Barb.  84. 
Elhot  V.  Elliot"  5  Binn.  8.  Say's  Ex'rs  v.  Barnes,  4  Serg.  &  R.  114,  115. 
Somes  V.  Skinner,  16  Mass.  359. 

(c)  2  Kent  Com.  (Uth  ed.)  348.  Chit,  on  Con.  (10th  Amer.  ed.)  298. 
Angcll  &  Ames  on  Corp.  §  237.  In  the  case  of  Bank  of  United  States  v. 
Dandridge,  12  Wheat.  64,  Chief  Justice  Marshall  dissented  from  the  other 
judges  on  this  point  and  held  that  a  corporation  could  evince  its  assent  in 
no  other  way  than  by  writing. 

(c/)  Badger  v.  Bank  of  Cumberiand,  26  Maine,  428.     Melledge  v.  Boston 


CORPOBATIONS.  157 

change  in  the  law  that  a  corporation  might  be  held  answer- 
able in  an  action  of  assumpsit,  (a)  which  could  not  be  main- 
tained on  a  contract  under  seal. 

One  established  exception,  in  England,  to  the  rule  that  cor- 
porations can  contract  only  under  seal,  is  the  power  of  those, 
that  are  chartered  for  purposes  of  trade,  to  bind  themselves  by 
bills  of  exchange  and  promissory  notes  ;  as  the  Bank  of  Eng- 
land, and  the  East  India  Company  ;  the  object  of  which  insti- 
tutions requires  that  they  should  have  this  power.  By  Best, 
C.  J.,  4  Bing.  288.  "  But  this  indulgence,"  he  «aid,  "  is  not 
extended  beyond  cases  of  necessity."  Hence  a  corporation 
established  in  England,  not  for  purposes  of  trade,  but  for 
supplying  towns  with  water,  or  any  purpose  so  disconnected 
with  trade,  has  not  power  to  issue  bills  or  notes,  unless  ex- 
pressly authorized  by  its  charter,  or  by  implication  from  its 
terms,  (b)  Where  the  charter  of  a  water-works  company  au- 
thorized the  directors  of  the  company  to  "  make  contracts, 
agreements,  and  bargains  with  the  workmen,  agents,  under- 
takers, and  other  persons  employed  or  concerned  in  making, 
completing,  or  continuing  the  works  belonging  to  the  said  un- 
dertaking, and  all  and  every  part  or  parts  thereof;"  it  was 
decided  that  an  agreement  not  under  seal,  for  the  fabrication 
and  supply  of  pipes  at  certain  stated  periods,  was  not  valid ; 
that  the  bargains  which  the  charter  authorized  the  directors 
to  make  must  be  made  "in  the  usual  way,  in  the  mode  pre- 
scribed by  law,  by  a  writing  under  the  common  seal."  (c) 

But  such  is  not  the  law  in  this  country.  Every  corporation, 
unless  prohibited  by  its  charter,  has  the  necessary  incidental 
power  to  incur  debts  in  the  course  of  its  legitimate  business, 
and  may  bind  itself  by  bills  of  exchange  or  promissory  notes 

Iron  Co.  5  Cush.  175.  Buncomb  Turnpike  Co.  v.  McCarson,  1  Dev.  &  Bat. 
312. 

(a)  Danforth  v.  Schoharie  and  Duanesburgh  Turnpike  Road,  12  Johns.  227. 
Hayden  v.  Middlesex  Turnpike  Corp.  10  Mass.  397.  And  see  Beverly  v. 
Lincoln  Gas  Light  &  Coke  Co.  2  Nev.  &  P.  290,  6  Ad.  &  El.  829  and  Wilhn. 
Woll.  &  Dav.  521. 

(b)  Broughton  v.  Manchester  Water  Works  Co.  3  B.  &  Aid.  1.  Slark  v. 
Highgate  Archway  Co.  5  Taunt.  794,  795.     Grant  on  Corp.  276. 

(c)  East  London  Water  Works  Co.  v.  Bailey,  4  Bing.  283. 


158  LAW   OF   CONTRACTS. 

given  for  such  debts,  (a)  And  as  to  other  contracts  besides 
bills  and  notes,  it  is  not  held  necessary  that  they  should  be 
under  seal.  Baron  Parke  was  well  warranted  in  saying,  (6 
Mees.  &  Welsh.  818)  that  "  the  American  law  has  entirely 
abrogated  the  old  doctrine."  There  were  a  few  early  decis- 
ions, made  by  state  courts,  conformably  to  the  old  English 
law ;  but  they  have  been  overruled  by  the  same  courts,  (b) 

As  corporations  are  mere  creatures  of  the  law,  and  are 
established  for  special  purposes,  they  have  only  the  powers 
which  their  charters  confer  upon  them,  either  expressly  or  as 
incidental  to  their  existence,  and  can  exercise  those  powers 
only  by  such  officers,  and  in  such  manner  as  their  charters  au- 
thorize, (c) 

It  has  sometimes  been  said  by  judges  and  writers,  that 
the  incidental  powers  of  a  corporation  created  for  a  specified 
purpose,  that  is,  the  powers  implied  in  its  charter,  are  such 
only  as  are  "  necessary  "  to  carry  into  effect  the  rights  and 
powers  expressly  granted.  But  this  is  not  so.  The  English 
doctrine  now  is,  that  when  corporations  are  created  by  an  act 
of  parliament,  for  particular  purposes,  with  special  powers, 
their  contracts  will  bind  them,  unless  it  appears  by  the  express 
provisions  of  the  act  creating  them,  or  by  necessary  and  rea- 
sonable inference  from  its  enactments,  that  their  contracts  are 
ultra  vires,  or  that  the  legislature  meant  that  such  contracts 

(a)  See  Clarke  v.  School  District,  3  R.  I.  199.  Moss  v.  Oakley,  2  Hill 
(N.  Y)  265.  Kelley  v.  Mayor,  &c.  of  Brooklyn,  4  ib.  263.  Rockwell  v. 
Elkliorn  Bank,  13  Wis.  653.  Lucas  v.  Pitney,  3  Butcher,  221.  Regents  of 
University  v.  Hart,  7  Min.  61.  Came  v.  Brigham,  39  Maine,  35.  Smead  v. 
Indianapolis,  &c.  Railroad  Co.  11  Ind.  104.     Clark  v.  Titcomb,  42  Barb.  122. 

{b)  Angell  &  Ames  on  Corp.  §  219.  Chit,  on  Con.  (10th  Amer.  ed.)  298, 
note  c.  2  Kent  Com.  (11th  ed.)  348,  349.  1  Parsons  on  Notes  and  Bills, 
163. 

(e)  Dartmouth  College  v.  Woodward,  4  Wheat.  636.  Plead  v.  Providence 
Ins.  Co.  2  Cranch,  167.  Bank  of  Augif.sta  v.  Earle,  13  Peters,  587.  Bank 
of  United  States  t'.  Dandridge,  12  Wheat.  68.  Rock  River  Bank  v.  Sher- 
wood, 10  Wis.  230.  And  see  East  Anglian  Railways  Co,  v.  Eastern  Counties' 
Railway  Co.  11  C.  B.  775.  Munt  v.  Shrewsbury  &  Chester  Railway  Co.  13 
Beavan,  1.  Attorney  General  v.  Andrews,  2  Macn.  &  Gord.  225  and  2  Hall 
&Twells,  431. 


CORPORATIONS.  159 

should  not  be  made,  (a)  In  Massachusetts  it  has  been  de- 
cided that  a  manufacturing  corporation  might  keep  a  shop  for 
the  sale  of  goods,  and  sell  them,  as  "  the  legislature  did  not  in- 
tend to  prohibit  the  supply  of  goods  to  those  employed  in  the 
manufactory."  (b)  And  in  Wisconsin,  the  court  held  that  if 
the  means  employed  by  a  corporation  are  reasonably  adapted 
to  the  ends  for  which  it  was  created,  they  are  within  its  im- 
plied powers  ;  that  it  is  not  restricted  to  the  means  usual  and 
necessary  in  carrying  on  the  business  and  objects  for  which  it 
was  chartered,  (c) 

Corporations  that  have  power  to  purchase  property  may 
give  promissory  notes  therefor,  if  not  expressly  prohibited  by 
statute,  (d)  So  corporations  may  take  and  negotiate  prom- 
issory notes  in  the  ordinary  course  of  their  authorized  busi- 
ness, (e) 

A  corporation  established  for  the  purpose  of  making  insur- 
ance has  been  held  to  have  no  implied  power  to  lend  money 
on  the  discount  of  notes,  and  that  if  it  so  lend  money,  it  can- 
not maintain  an  action  on  notes  so  made  or  indorsed ;  "  the 
power  of  lending  money  on  discount  not  being  necessary  to 
effectuate  the  business  of  insurance."  (/)     By  exercising  such 

(a)  Bateraan  v.  Mayor,  &c.  of  Ashton-Under-Lyne,  3  Hurlst.  &  Norm.  323. 
By  Baron  Parke,  9  Exch.  84. 

(6)  Chester  Glass  Co.  v.  Dewey,  16  Mass.  94. 

(c)  Madison,  &c.  Plank  Road  Co.  v.  Watertown,  &c.  Plank  Road  Co.  5 
Wis.  173.  Clark?;.  Farrington,  11  ib.  323.  In  Dana  u.  Bank  of  St.  Paul,  4 
Min.  385,  it  was  held  that  an  act  or  contract  of  a  corporation  must  clearly 
appear  not  to  be  within  its  chartered  powers,  before  the  court  will  declare  such 
to  be  its  character.  And  see  Brown  v.  Winnissimmet  Co.  11  Allen,  326. 
Mayor,  &c.  of  Baltimore  v.  Baltimore  &  Ohio  Railroad  Co.  21  Maryl.  50. 

(d)  Moss  J).  Averill,  6  Selden,  449. 

(e)  Frye  v.  Tucker,  24  Illinois,  180.  Farmer's  Bank  v.  Maxwell,  32  N.  Y. 
Rep.  579. 

(/)  New  York  Firemen  Ins.  Co.  v.  Ely,  5  Conn.  560,  569.  Same  parties, 
2  Cowen,  678.  Utica  Ins.  Co.  v.  Scott,  19  Johns.  1.  Utica  Ins.  Co.  v.  Hunt, 
1  Wend.  56.  It  was  decided  in  Utica  Ins.  Co.  v.  Kip,  8  Cowen,  20,  and  in 
one  or  two  other  cases  in  New  York,  that  though  the  notes  taken  in  such 
cases  by  the  corporation  were  void,  yet  that  the  corporation  might  recover  the 
money  in  an  action  for  money  lent.  But  this  was  questioned  by  Nelson,  C.  J. 
in  25  Wend.  650.     See  Angell  &  Ames  on  Corp.  §§  265,  274. 


160  LAW   OF   CONTRACTS. 

power,  such  corporation  usurps  a  franchise,  and  judgment  of 
ouster  will  be  rendered  against  it  upon  information  in  the  na- 
ture of  a  quo  warranto,  (a)  A  corporation  that  is  authorized 
to  lend  money  only  on  bond  and  mortgage  cannot  recover 
money  lent,  unless  a  bond  and  mortgage  be  taken  for  its  pay- 
ment ;  and  every  other  security,  as  well  as  the  contract  itself, 
is  void,  (b) 

In  Bank  of  Genessee  v.  Patchin  Bank,  3  Kernan,  309,  it 
was  held  that  a  bank  has  no  power  to  engage  as  surety  for 
anotlier,  in  a  business  in  which  it  has  no  interest,  and  is  not 
liable  on  its  accommodation  indorsement. 

There  is  this  distinction  between  corporations  and  individu- 
als :  An  individual  may  make  and  enforce  the  performance 
of  any  contract  which  the  law  does  not  forbid.  A  corporation 
can  make  and  enforce  no  contract  which  the  law  does  not 
expressly  authorize  it  to  make,  or  which  is  not  fairly  incident 
to  the  authority  expressly  conferred. 

(o)  People  V.  Utica  Ins.  Co.  15  Johns.  358.  And  see  The  State  v.  Steb- 
bins,  1  Stew.  299.     People  v.  River  Raisin,  &c.  Railroad  Co.  12  Mich.  390. 

(b)  Life  &  Fire  Ins.  Co.  v.  Mechanic  Fire  Ins.  Co.  7  Wend.  31.  North 
River  Ins.  Co.  v.  Lawrence,  3  Wend,  482. 

In  2  Bulst.  233,  it  is  reported  that  "  the  opinion  of  Manwood,  Chief 
Baron,  was  this  as  touching  corporations ;  that  they  were  invisible,  immortal, 
and  that  they  had  no  soule,  and,  therefore,  no  subpoena  lieth  against  them,  be- 
cause they  have  no  conscience  nor  soule ;  a  corporation  is  a  body  aggregate ; 
none  can  create  soules  but  God  ;  but  the  king  creates  them,  and,  therefore, 
they  have  no  soules ;  they  cannot  speak  nor  appear  in  person,  but  by  at- 
torney. And  this  was  the  opinion  of  Manwood,  Chief  Baron,  touching  cor- 
porations." 


CHAPTER   III. 

Of  the   Consideration  of  Contracts. 

Mr.  Chitty's  description  of  a  contract  not  under  seal  (it 
will  be  recollected)  is  "  a  mutual  assent  of  two  or  more  per- 
sons competent  to  contract,  founded  on  a  sufficient  and  legal 
consideration,"  &c.  Mutual  assent  and  parties  having  been 
considered,  the  consideration  of  a  simple  contract  is  next  in 
order. 

What  is  called,  in  the  common  law,  the  consideration  of 
a  contract,  is  denominated,  in  the  civil  law,  the  cause  ;  causa 
contractus,  conventio  cum  causa,  &c. 

"  Consideration  is  the  material  cause,  or  quid  pro  quo  of  a 
contract,  without  which  it  will  not  be  effectual  or  bind- 
ing ;  "  (a)  "  a  cause  or  meritorious  occasion,  requiring  a  mu- 
tual recompense,  in  fact  or  in  law."  {h) 

On  principles  of  mere  natural  law,  every  gratuitous  under- 
taking, if  deliberately  and  fairly  assumed,  forms  the  basis  not- 
only  of  an  honorary  but  of  a  moral  obligation.  But  moral 
duties  and  legal  obligations  are  not  made  coextensive  by 
any  municipal  code.  The  common  law,  especially,  gives 
effect  only  to  contracts  that  are  founded  on  the  mutual  ex- 
igencies of  men,  and  does  not  compel  the  performance  of  any 
merely  gratuitous  engagements,  unless  those  engagements 
are  made  under  seal ;  and  even  then,  a  fiction  is  adopted. 
A  seal,  it  is  said,  imports  a  consideration,  which  the  party 
shall  not  be  permitted  to  deny.  By  local  usage,  however,  in 
some  of  the  States  of  the  Union,  and  by  statute  in  others,  the 

(a)  Termes  de  la  Ley.  (h)  Dyer,  336  b.     Finch,  34. 

11 


162  LAW  OP   CONTRACTS. 

want  or  failure  of  consideration  is  a  valid  defence  to  a  suit  on 
a  sealed  contract,  (a)  And  courts  of  chancery  will  not  en- 
force specific  performance  of  such  contracts,  if  they  are  with- 
out consideration. 

Mr.  Justice  Wilmot  expressed  a  strong  opinion,  3  Bur.  1670, 
1671,  that  if  a  contract  were  reduced  to  writing,  the  doctrine 
of  nude  pacts,  which  was  introduced  from  the  civil  law, 
would  not  apply.  Blackstone  also  says,  a  promissory  note, 
"  from  the  subscription  of  the  drawer,  carries  with  it  an  in- 
ternal evidence  of  a  good  consideration,"  and  that  "  he  shall 
not  be  allowed  to  aver  the  want  of  a  consideration,  in  order 
to  evade  the  payment."  (6) 

It  was,  however,  decided  by  the  House  of  Lords,  in  the 
case  of  Rann  v.  Hughes,  (c)  as  seen  ante,  147,  that  whatever 
may  be  the  rule  of  the  civil  law,  simple  contracts,  by  the  law 
of  England,  whether  oral  or  written,  must  be  founded  on  a 
consideration,  (d)  Nor  is  a  promissory  note  an  exception  to 
this  rule.  While  such  note  is  in  the  hands  of  the  payee, 
want  of  consideration  is  a  good  defence.  So  also  as  between 
indorser  and  indorsee,  (e)  When  a  negotiable  note  is  nego- 
tiated, and  comes  into  the  hands  of  a  third  person,  bona  fide, 
and  without  notice,  the  want  of  consideration  for  originally 
giving  or  indorsing  it  is  not  a  defence  against  the  holder. 
The  same  is  true  of  negotiated  bills  of  exchange. 

It  is  not,  however,  the  form  of  a  bill  or  note,  nor  its  being 
in  writing,  that  gives  it  efficacy  without  consideration.  This 
efficacy  is  given  by  the  law,  in  order  to  facilitate  commercial 
intercourse,  which  is  carried  on  through  the  medium  of  these 
species  of  contracts,  and  which  would  be  greatly  retarded  and 
embarrassed  if  every  holder  of  these   kinds  of   paper  were 

(a)  See  1  Bay,  278.  2  Bay,  11.  1  Dallas,  17.  5  Binn.  232.  11  Wend. 
106.  1  Blackf.  172.  1  Bibb,  600.  And  by  the  common  law,  a  bond  given 
in  partial  restraint  of  trade,  may  be  shown  to  be  void  for  want  of  considera- 
tion.    Post^  c.  iv. 

(h)  2  Bl.  Com.  450.  (c)   7  T.  R.  850,  note. 

(f/)  See  also  Cooke,  499.     4  Taunt.  117.     1  Saund.  211,  note  2. 

(e)  Kyd  on  Bills,  (3d  cd.)  276.  2  Ves.  jr.  111.  5  Taunt.  553.  6  Mass. 
434.     3  T.  R.  421.     17  Johns.  301. 


OF  THE   CONSIDERATION.  163 

obliged  to  inquire  into  the  original  consideration,  or  incur  the 
risk  of  losing  his  property  on  account  of  a  defect  in  their  con- 
coction. Another  reason  is  given  in  some  of  the  books,  namely, 
that  these  instruments  are  governed  by  the  law-merchant, 
which  is  founded  on  the  law  of  nature  and  nations,  by  which 
want  of  consideration  is  not  an  essential  defect  in  a  contract. 

It  is  not  necessary  that  the  consideration  of  an  agreement 
should  be  adequate  in  actual  value.  No  means  are-  provided 
by  which  this  point  can  be  determined  in  a  court  of  law.  In- 
adequacy of  price  is  sometimes  a  ground  of  relief  in  chan- 
cery ;  not,  however,  on  the  principle  of  controlling  or  revising 
the  judgment  of  the  parties,  when  freely  and  fairly  exercised ; 
but  upon  the  evidence,  thereby  furnished,  of  the  incompetency 
of  one  party  to  contract,  or  of  fraud  and  imposition  practised 
by  the  other,  in  the  instance  brought  into  question,  (a) 

A  consideration,  it  is  said,  must  include  some  benefit  to  the 
party  promising,  or  some  trouble,  prejudice,  or  inconvenience 
to  the  party  to  whom  the  promise  is  made,  {b)  And  with 
reference  to  the  rules  of  pleading,  it  is  probably  true  that  a 
consideration  must  include  some  benefit  to  the  promisor,  or  to 
a  third  person,  or  some  damage,  loss,  or  inconvenience  to  the 
promisee,  at  the  instance  of  the  party  promising.  In  stating 
the  consideration  of  an  agreement,  in  a  declaration  in  special 
assumpsit,  it  doubtless  is  necessary,  as  a  general  rule,  to  allege 
the  instance  or  request  of  the  promisor  that  he  or  a  third  per-  / 
son  should  receive  a  benefit,  or  that  the  promisee  should  incur 
a  damage,  inconvenience,  or  loss.  In  many  cases,  however, 
this  request  may  be,  and  is,  implied,  as  well  as  the  promise 
thereupon  made  ;  and  like  the  promise  itself,  it  is  also  some- 
times to  be  implied  directly  against  the  actual  fact.  The 
fiction  is  as  obvious,  and,  on  original  principle,  as  unnecessary, 
in  this  stage  of  the  contract,  as  in  that  where  a  promise  by 
the  same  party  is  implied.  The  real  ground,  in  both  cases,  as 
has  heretofore  been  suggested  [ante,  5,  6,)  as  to  the  promise, 

(a)  See  Evans  v.  Brown,  Wightwick,  109.     Newland  on  Contracts,  Chap- 
ter xxi.     George  v.  Richardson,  Gilmer,  230. 

(b)  Com.  Dig.  Assmnpsit,  B.  1.     Smith  on  Con.  (4th  Amer.  ed.)  166. 


164  LAW   OP    CONTRACTS. 

is  duty  and  obligation,  moral  and  legal.  There  often  needs  to 
be,  and  is,  in  fact,  no  request  and  no  promise,  (a) 

However  slight  the  benefit  to  the  promisor,  if  of  any  legal 
value,  and  however  slight  the  damage,  loss,  or  inconvenience 
to  the  promisee,  if  of  any  legal  estimation,  it  is  sufficient  to 
support  a  contract.     17  Conn.  511. 

There  are  cases  in  which  it  seems  doubtful  whetber  the 
consideration,  which  sustains  what  is  treated  as  a  contract,  is 
regarded  in  law  as  a  benefit  to  the  promisor,  or  a  damage,  &c., 
to  the  promisee.  Thus  where  goods  are  delivered  on  a  promise 
to  redeliver  them  to  the  bailor,  when  no  use  is  to  be  made  of 
them  by  the  bailee,  nor  anything  paid  or  promised  by  the 
bailor,  and  where  goods  or  moneys  are  delivered  by  the  owner 
to  a  bailee,  on  his  undertaking  to  deliver  them  to  a  third  per- 
son, the  bailment  being  gratuitous,  it  is  held  that  the  bailor 
has  a  remedy,  in  an  action  ex  contractu,  if  the  bailee  do  not 
perform  his  undertaking,  and  that  there  is  a  sufficient  con- 
sideration to  support  a  contract.  Wheatley  v.  Low,  Cro,  Jac. 
668  and  Palmer,  281.  Graves  v.  Ticknor,  6  N.  Hamp.  537. 
Robinson  v.  Threadgill,  13  Ired.  39.  It  is  also  held  that  such 
action  is  maintainable  against  a  gratuitous  bailee  for  mis- 
performance   of    his   undertaking,  {b)    or   for   loss,    by    gross 

(a)  A  suggestion  may  not  be  useless,  in  this  connection,  respecting  the 
practice  of  putting  books  on  the  Law  of  Nisi  Prius  (Buller,  Espinasse,  Selwyn) 
into  tlie  hands  of  students,  in  the  early  stages  of  their  pupilage.  The  doc- 
trines of  the  law,  in  these  works,  are  set  forth,  in  a  great  measure,  Avith  ref- 
erence to  the  actions  of  which  the  compilers  treat,  and  the  rules  of  pleading 
applicable  to  those  actions.  But  when  (in  former  days)  were  students 
advised  of  this  fact  ?  When  were  they  cautioned  not  to  take,  as  the  real 
truth  of  the  matter,  the  elementary  doctrine  of  the  law,  the  positions  laid 
down  by  these  writers  in  reference  to  the  forms  of  actions  and  of  plead- 
ing ?  The  writers  themselves  do  not  give  this  caution,  and  young  students 
do  not  always  distinguish  between  the  body  and  the  dress,  the  substance 
and  the  form.  With  regard  to  pleading,  nearly  the  whole  doctrine  treated 
of  under  the  title  of  Assumpsit  is  founded  on  fictions,  that  no  book,  which 
the  writer  has  seen,  has  attempted  to  explain  or  arrange.  He  hopes,  how- 
ever, that  others  have  never  been  confused  and  misled  as  he  has  been  by 
lack  of  knowledge  on  these  points. 

Qj)   Whitehead  v.  Greetham,  McClel.  &  Y.  205,  10  Moore,  183  and  2  Bing. 


OP  THE   CONSIDERATION.  165 

negligence,  of  the  thing  bailed,  (a)  According  to  Palnaer's  re- 
port of  Wheatley  v.  Low,  Ley,  C.  J.  considered  the  damage 
ultimately  sustained  by  the  bailor,  as  the  consideration  on 
which  the  contract  rested.  But  this  is  no  legal  considera- 
tion ;  for  it  did  not  exist  at  the  time  the  alleged  contract  was 
made.  The  same  might  be  said  of  every  gratuitous  prom- 
ise where  an  injury  arises  from  a  neglect  to  perform  it. 
Lord  Holt  said,  "  there  is,  in  that  case,  no  benefit  to  the 
defendant,  nor  no  consideration  but  the  having  the  money  in 
his  possession,  and  being  trusted  with  it,  and  yet  that  was 
held  to  be  a  good  consideration."  2  Ld.  Raym.  920.  And 
this,  according  to  Croke's  report,  was  the  ground  on  which 
the  court  put  the  case.  In  a  prior  case,  (6)  the  bailee's 
possession  of  the  property  was  regarded  as  a  benefit  to  him. 
And  these  cases  are  classed,  by  Comyns  and  by  Comyn,  with 
those  of  benefit  to  the  promisor,  (c) 

It  cannot  be  doubted  that,  in  some  of  these  cases,  the  bailor 
must  have  requested  the  bailee  to  take  the  property,  and  that 
(whether  benefit  to  the  latter,  or  damage  to  the  former,  were 
the  gi'ound  of  the  consideration)  it  was  not  in  fact,  however 
it  might  be  in  legal  intendment,  at  the  instance  and  request 
of  the  promisor.  And  so  in  all  other  gratuitous  bailments, 
where  the  actual  advantage  accrues  only  to  the  bailor. 

In  all  these  cases,  and  others  like  them,  it  is  admitted  and 
adjudged,  that  if  the  party  sought  to  be  charged  had  merely 
promised  to  receive  the  goods  and  redeliver  them  to  the  bailor, 
or  deliver  them  over  to  a  third  person,  or  to  do  any  other  act, 
and  had  afterwards  refused  or  omitted  to  fulfil  such  promise, 
he   could   not   have  been   made   responsible  in  law  for   the 


464.     See  Dartnall  v.  Howard,  4  Barn.  &  Cres.  345  and  6  Dowl  &  Ryl, 
438. 

(a)  Doorman  v.  Jenkins,  2  Ad.  &  El.  256  and  4  Nev.  &  Man.  170. 
Beauchamp  v.  Powley,  1  Mood.  &  Rob.  38.  See  Beardslee  v.  Richardson, 
11  Wend.  25. 

(b)  Riches  v.  Bridges,  Cro.  Eliz.  883  and  Yelv.  4.  This  case  was  reversed, 
but  was  restored  by  the  decision  in  Wheatley  v.  Low,  supra.  Story  on  Bailm. 
§  98.     2  Ld.  Raym.  920. 

(c)  Com.  Dig.  Assumpsit,  B.  10.     Comyn.  on  Con.  (1st  ed.)  14. 


166       '  LAW   OF   CONTRACTS. 

non-performance,  either  in  an  action  ex  contractu  or  ex  de- 
licto, {a)  But  if  the  bailee  enters  upon  the  performance  of  a 
gratuitous  undertaking,  and  fails  to  perform  it  according  to  the 
terms  of  the  undertaking,  he  is  answerable  in  damages,  [b) 

The  fictitious  nature  of  the  consideration,  as  to  the  inci- 
dents of  "  benefit,"  &c.,  is  still  more  manifest  in  that  class  of 
cases  where  a  mere  legal  obligation  is  the  ground  of  an  im- 
plied proQQise,  than  in  the  cases  already  mentioned.  In  such 
cases,  the  obligation  is  held  to  be  a  sufficient  consideration,  (c) 
The  action  of  debt  is  founded  on  a  contract,  express  or  im- 
plied ;  yet  debt  lies  for  the  recovery  of  a  penalty  affixed  by 
statute  to  the  commission  of  an  act  therein  forbidden,  or  the 
omission  of  an  act  therein  enjoined,  unless  some  other  mode 
of  recovery  is  prescribed  by  the  statute  itself  The  penalty, 
when  incurred,  is  by  the  law  regarded  as  a  debt  thereupon 
due  to  the  party  authorized  to  sue  for  it.  And  if  a  considera- 
tion is  required  to  support  an  implied  contract  to  pay  such  a 
debt,  it  is  to  be  sought  in  the  legal  obligation  to  pay  it.  If 
the  penalty  be  given  to  the  party  injured  by  the  act  or  omis- 
sion by  which  it  is  incurred,  and  he  be  regarded  as  the  party 
with  whom  the  delinquent  contracted,  there  would  be  no  diffi- 
culty, perhaps,  in  ascertaining  whether  the  consideration  in- 
cluded a  benefit  to  the  one  or  a  damage  to  the  other.  But 
when  the  penalty  is  given  to  a  common  informer,  and  the 
notion  of  a  contract  is  still  retained,  as  it  must  be,  the  diffi- 
culty, as  to  the  benefit  or  damage  included  in  the  considera- 
tion, is  not  so  readily  removed.  Debt  also  lies  (in  England 
and  in  some  of  the  states  of  the  American  Union)  against  a 

(a)  Addison  on  Con.  (2d  Amer.  ed.)  11,  532.  Thorne  v.  Deas,  4  Johns. 
84.  Stephens  v.  White,  2  Wash.  (Va.)  211,  212.  McGee  v.  Bast,  6  J.  J. 
Marsh.  455. 

{h)  By  Lord  Holt,  2  Ld.  Raym.  919.  Elsee  v.  Gatward,  5  T.  R.  143. 
Wilkinson  v.  Coverdale,  1  Esp.  R.  75.  Balfe  v.  West,  13  C.  B.  466.  Fer- 
guson V.  Porter,  3  Florida,  38.  Walker  v.  Smith,  1  Wash.  C.  C.  162. 
French  v.  Reed,  6  Binn.  308.  Rutgers  v.  Lucet,  2  Johns.  Cas.  95.  Kirt- 
land  t".  Montgomery,  1  Swan,  457,  458.  Alexander  r.  Motlow,  1  Sneed, 
253.  Story  on  Bailni.  §§  169-171.  Edwards  on  Bailm.  100.  2  Kent  Com. 
(nth  ed.)  760. 

(c)  Belfast  v.  Leominster,  1  Pick.  127.     See  also  7  Conn.  5  7. 


OP  THE   CONSIDERATION.  167 

sheriff  for  the  escape  of  a  prisoner  in  execution.  This,  how- 
ever, is  by  an  old  English  statute,  and  not  by  the  common  law. 
A  debt  to  the  creditor  is  incurred  by  the  officer  guilty  of  the 
escape.  Here  again,  damage  to  the  creditor  is  sufficiently 
obvious  as  the  consideration  of  this  fictitious  contract. 

In  all  these  and  similar  cases,  the  "  instance  and  request " 
of  the  party  liable  by  law  to  pay,  that  the  other  party  should 
incur  a  damage,  &c.,  must  be  implied,  if  at  all,  hot  only  against 
the  fact,  but  against  all  the  principles  by  which  mankind  are 
actuated.  Such  cases  are  to  be  regarded  as  anomalies ;  the 
law  authorizing  the  enforcement  of  a  remedy  in  the  form  ap- 
propriated to  actual  contracts.  They  are,  in  truth,  no  more 
properly  contracts  than  are  assault  and  battery,  slander,  or 
larceny.  And  on  strict  principle,  the  collection  of  a  penalty 
for  breach  of  a  statute  is  no  more  easily  reconciled  with  the 
doctrine  of  contracts,  than  would  be  the  recovery  of  damages 
for  any  injury  infficted  on  persons  or  property ;  and  the  law 
might  as  well  imply  a  promise  to  repair  all  injuries  which  a 
party  commits,  as  to  pay  a  penalty  prescribed  by  statute,  or 
the  debt  of  a  prisoner  escaping  from  an  officer. 

So  in  the  case  of  a  mere  legal  obligation,  where  there  is  no 
antecedent  moral  duty,  the  notion  of  a  contract  is  wholly 
fictitious.  By  a  fiction,  indeed,  the  protection  of  government 
may  be  deemed  a  consideration  for  an  implied  promise  to  pay 
the  expenses  of  administering  it.  And  this  fiction  may  be 
extended  to  the  cases  of  municipal  charges,  as  for  the  support 
of  the  poor,  &c.  But  in  these  instances  of  mere  positive  in- 
stitution, though  the  law  may  rank  with  actual  contracts  the 
obligation  of  contributing,  yet  there  is  only  an  imaginary  re- 
semblance, and  it  is  only  by  fiction,  and  for  legal  conformity's 
sake,  that  a  consideration  is  to  be  sought. 

The  cases  in  which  a  slight  benefit  to  the  party  promising, 
and  a  slight  damage,  loss,or  inconvenience  to  the  other  party, 
has  been  held  sufficient  to  sustain  a  contract,  are  collected  in 
Comyns's  Digest,  Action  upon  the  Case  upon  Assumpsit,  B, 
1  Comyn  on  Contracts,  part  L,  chapter  2,  and  1  Powell  on 
Contracts,  330  et  seq.  Upon  a  careful  examination  of  the 
earlier  cases  on  this  subject,  some  confusion  and  contradiction 


168  LAW  OP   CONTRACTS. 

will  be  perceived ;  and  it  probably  is  impossible  to  reconcile 
them.  In  most  instances,  however,  it  will  be  found  that  the 
misapplication  of  acknowledged  principles,  rather  than  the 
assumption  of  contradictory  ones,  has  caused  the  discrepan- 
cies in  the  adjudications  on  this  topic.  In  the  modern  decis- 
ions, there  is  hardly  an  instance  in  which  judges  have  differed 
in  their  views  on  the  subject  of  consideration. 

In  sales,  exchanges,  loans,  and  most  other  contracts,  there 
is  no  difficulty  in  at  once  perceiving  the  consideration.  But 
in  some  cases  it  is  not  so  readily  discerned.  And  after  hes- 
itation as  to  the  expediency  or  the  profit  of  so  doing,  a  few  ex- 
amples, illustrative  of  the  principles  on  which  much  of  the 
law  on  this  point  now  rests,  are  here  cited. 

Slight  benefit  to  the  promisor. 

A  promise,  in  consideration  of  so  much  money  received,  to 
pay  the  like  sum  into  court,  and  appear.  "  For  here  he  has 
benefit  for  the  use  of  the  money."  [a)  A  promise  to  cancel  a 
bond,  in  consideration  that  the  obligor  will  pay  the  single  sum, 
at  the  day  of  payment.  "  For  peradventure  the  non-payment 
at  that  time  would  be  more  prejudicial  to  him  than  the  for- 
feiture of  the  bond  would  be  of  advantage."  "  He  had  benefit, 
namely,  to  be  sure  of  the  performance."  {h)  So  of  a  promise 
by  a  judgment  creditor  to  assign  the  bond  and  judgment 
against  the  principal  to  the  bail,  in  consideration  of  his  pay- 
ing the  amount  of  the  judgment,  after  scire  facias  brought 
against  him.  (c)  A  promise  by  an  executor  to  accept  .£150 
in  satisfaction  of  a  debt  to  the  testator  of  £205.  For  the 
nature  of  the  debt  is  changed,  and  the  executor  may  sue  for 
it  in  the  debet,  i.  e.  as  for  his  own  proper  debt;  whereas,  be- 
fore, he  must  have  sued  in  the  detinet,  i.  e.  in  his  representa- 
tive capacity,  (d)  This  action  was  against  the  debtor  on  his 
promise  to  pay  the  smaller  sum,  and  was  sustained.  But 
there  was  no  consideration  for  this  promise,  unless  the  execu- 
tor was  bound  to  discharge  the  original  debt.     And  on  the 

(a)  2  Vent.  45. 

(b)  Hutton  76  and  Cro.  Car.  8.  See  also  Coke  v.  Hewit,  cited  Cro.  Eliz. 
194.  (c)  Gouldsb.  156.  (d)  Yelv.  11. 


OP  THE  CONSIDERATION.  169 

same  principle  an  action  would  have  been  supported  against 
the  executor,  if  he  had  refused  to  fulfil  his  engagement  to  re- 
ceive the  smaller  sum  in  full  satisfaction.  A  promise  to  ac- 
knowledge satisfaction  of  a  judgment  for  five  pounds,  upon 
the  payment  of  four  pounds,  was  held  to  be  binding;  for  "  it 
is  a  benefit  unto  him  to  have  it  without  suit  or  charge  ;  and 
it  may  be  there  was  error  in  the  record,  so  as  that  the  party 
might  have  avoided  it."  (a)  This  case,  however,  would  not, 
probably,  be  now  considered  as  rightly  adjudged.  A  contract 
of  which  a  lease  at  will  is  the  consideration,  has.  been  ad- 
judged to  be  void,  because  the  tenancy  may  be  determined 
immediately;  (6)  but  if  it  be  doubtful  whether  the  tenant 
have  a  right  to  hold,  i.  e.  if  it  be  doubtful  whether  he  be  ten- 
ant at  will,  the  assignment  of  such  a  lease  or  interest  will 
support  a  promise,  (c)  The  relinquishment  of  a  doubtful 
right  is  therefore  a  good  consideration  for  a  promise,  (d) 
Where  the  plaintiff  orally  bargained  with  A.  for  a  house,  and 
sold  the  bargain  to  the  defendant  for  £40,  and  A.,  at  the  de- 
fendant's request,  conveyed  to  B.,  it  was  held,  in  a  suit  for 
the  .£40,  that  the  consideration  was  sufficient,  (e)  The  only 
true  ground  of  this  decision  seems  to  be,  that  the  defendant 
had  a  chance  of  receiving  a  benefit.  That  the  defendant 
actually  received  a  benefit,  through  the  plaintiff's  means, 
though  mentioned  by  the  court,  was  no  consideration  for  the 
original  promise  ;  though  it  might  perhaps  have  supported  a 
promise  made  after  the  conveyance  to  B.  If  the  decision  be 
correct,  on  the  existing  facts,  it  must  have  been  the  same, 
though  A.  had  refused  to  convey  the  house. 

In  Schnell  v.  Nell,  17  Ind.  29,  it  was  held  that  a  promise, 
in  consideration  of  one  cent,  to  pay  six  hundred  dollars,  was 
unconscionable  and  void  on  its  face.     So  of  a  promise,  in  con- 

(«)  Cro.  Eliz.  429  and  Moore,  412. 
(&)  Kent  V.  Prat,  1  Brownl.  6. 

(c)  1  Vin.  Ab.  309.     2  Bing.  244. 

(d)  See  post.  177. 

(e)  Seaman  v.  Price,  2  Bing.  437.  On  a  writ  of  error,  the  King's  Bench 
affirmed  this  judgment,  upon  the  ground  that  A.'s  promise  must  be  taken 
after  verdict,  to  have  been  a  valid  one,  i.  e.  in  writing.  4  Barn.  &  Cres.  528 
and  7  Dowl.  &  Ryl.  14. 


170  LAW  OF   CONTRACTS. 

sideration  of  one  dollar,  to  pay  upwards  of  a  thousand  dollars. 
Shepard  v.  Rhodes,  7  R.  I.  470. 

Slight  damage,  Sfc,  to  the  promisee. 

A  promise  to  pay  a  sum  of  money,  if  the  promisee  will 
procure  an  order  from  a  third  person,  directing  the  payment, 
is  binding,  if  the  condition  is  performed,  (a)  So  of  a  promise 
to  pay  rent  in  arrear  to  an  assignee  of  a  leasehold  estate,  if  a 
deed  be  shown  proving  that  the  rent  is  due.  [b)  So  of  a 
promise  to  pay  the  bond  of  a  third  person,  if  the  obligee  will 
go  before  a  magistrate  and  make  oath  that  it  was  rightly  read 
to  the  obligor  before  he  executed  it.  "  The  travail  of  coming 
before  the  mayor  is  a  very  good  consideration."  (c)  In  the 
cases  cited  in  the  margin,  {(T)  proof  of  a  debt,  in  various 
agreed  modes,  was  held  to  be  a  sufficient  consideration  for  a 
promise  to  pay.  "  For  it  is  a  charge  to  the  plaintiff."  So  of 
an  undertaking  to  endeavor  to  perform  an  act  at  another's  re- 
quest ;  (e)  and  of  a  promise  to  indemnify,  if  the  plaintiff  will 
enter  into  land  of  a  third  person  which  the  defendant  claims 
as  his  own.  (/)  So  of  a  promise  to  pay  a  certain  sum  of 
money  if  the  plaintiff  will  call  for  it  at  a  particular  time,  and 
he  call  accordingly ;  the  calling  for  the  money  being  an  incon- 
venience to  the  plaintiff,  [g)  Where  A.,  at  B.'s  request,  con- 
sented that  B.  might  weigh  A.'s  boilers,  and  B.  thereupon 
promised  that  after  the  weighing  he  would  leave  and  give 
them  up  in  as  good  condition  as  they  were  in  at  the  time 
of  the  consent  so  given,  it  was  held  that  there  was  a  good 

(a)  2  Vent.  71,  74. 

(6)  Cro.  Eliz.  67. 

(c)  Cro.  Eliz.  469.  T.  Ray.  153.  2  Sid.  123.  18  Johns.  337.  But  see 
1  Freeman,  133  and  1  Mod.  166,  where  Vaughan,  C.  J.  denied  that  extrajudi- 
cial oaths  were  lawful,  or  of  any  legal  effect,  and  said  they  were  punishable 
by  setting  the  party  in  the  stocks,  under  the  statute  of  James  I.  against  pro- 
fane swearing. 

(r/)  1  Sid.  57,  283,  369.  T.  Ray.  32.  7  Mod.  13.  1  Freeman,  53.  1  Lit- 
tell,  121,  123. 

(e)   Hob.  105.     T.  Ray.  400. 

(/)   2  Johns.  Cas.  52. 

(fj)  By  Wilde,  J.  5  Pick.  384.     And  see  11  Met.  171,  172. 


OF  THE    CONSIDERATION.  171 

consideration  for  the  promise ;  that  A.  might  have  sustained 
some  damage  by  complying  with  B.'s  request,  (a) 

Benefit  to  a  third  person  at  the  instance  of  the  promisor. 

All  sureties  for  the  debts,  or  performance  of  duties,  cove- 
nants, &c.,  of  others,  come  under  this  head.  The  surety,  by 
legal  intendment,  requests  that  the  principal  may  be  accom- 
modated with  a  loan,  or  may  have  credit  at  another's  shop, 
&c.  The  consideration  of  his  undertaking  is  the  benefit  re- 
ceived by  the  principal,  at  his  request,  express  or  implied. 
Guaranties,  and  all  other  forms  of  collateral  obligation  as- 
sumed for  others,  come  within  the  same  principle,  (b) 

In  Minet's  case,  (c)  Lord  Eldon  said,  "  the  undertaking  of 
one  man  for  the  debt  of  another  does  not  require  any  con- 
sideration moving  between  them."  And  undoubtedly  it  is  not 
necessary,  in  order  to  hold  a  surety,  that  there  should  be  any 
consideration,  as  between  him  and  the  principal.  Any  person 
may  promise  as  surety,  without  the  principal's  knowledge  ; 
and  if  there  be  a  consideration  for  the  promise  it  will  be 
binding.  Otherwise,  he  will  not  be  bound,  though  he  promise 
at  the  express  request  of  the  principal. 

Where  the  whole  is  one  agreement,  where  the  principal  and 
surety,  or  guarantor,  unite,  at  the  same  time,  in  making  a 
promise,  that  agreement  is  obligatory  on  the  surety,  or  guar- 
antor ;  and  the  consideration  for  that  agreement  attaches  to 
him  as  well  as  to  the  principal.  Principal  and  surety,  in  such 
case,  are  joint  contractors,  and  the  benefit  to  the  principal,  or 
the  damage,  &c.,  to  the  promisee,  is  the  consideration  which 
supports  the  contract  of  both  promisors,  (d) 

When  a  promise  is  made  to  pay  the  already  existing  debt 
of  another,  there  must  be  some  new  consideration,  or  the 
promise    will    be    void.      The    original    consideration,    which 

(a)  Bainbridge  v.  Firmston,  1  P.  &  Dav.  2,  8  Ad.  &  El.  743  and  Willm. 
Woll.  &  Hodges,  600.     And  see   3  Kerr,  (N.  B.)  212. 

(i)  See  Brown  v.  Garbrey,  Gouldsb.  94.  Kirkby  w.  Coles,  Cro.  Eliz.  137. 
Stadt  V.  Ijill,  9  East,  348.  Leonard  v.  Vredenburgh,  8  Johns.  29.  Hunt  v. 
Adams,  5  Mass.  361. 

(c)  14  Ves.  189. 

(d)  See  Tenney  v.  Prince,  4  Pick.  385.     Samson  v.  Thornton,  3  Met.  279. 


172  LAW   OF   CONTRACTS. 

supports  the  principal's  contract,  cannot  be  made  to  operate 
on  the  new  promise.     Such  promise  it  nudum  pactum,  (a) 

Forbearance. 

Forbearance  to  sue,  or  surceasing  a  suit  or  suspending  a 
right,  is  a  sufficient  consideration,  [b)  Thus  where  an  obligor 
had  commenced  proceedings  in  chancery,  on  the  ground  that 
he  had  paid  the  bond  which  still  remained  in  the  obligee's 
hands,  a  promise  by  the  latter  to  give  up  the  bond,  in  con- 
sideration that  the  obligor  would  desist  from  his  suit  in  chan- 
cery, was  held  to  be  valid,  (c)  An  agreement  to  forbear,  for 
a  certain  or  reasonable  time,  to  sue,  or  adopt  legal  proceedings, 
for  a  legal  cause  of  action,  at  the  request  of  the  party  liable, 
is  a  sufficient  consideration  to  support  a  promise,  [d)  For- 
tjearance  to  sue,  &c.,  is  a  good  consideration  for  the  promise 
of  a  third  person,  as  well  as  of  the  person  liable  to  suit,  (e) 
In  some  of  the  foregoing  cases,  the  forbearance  was  given  by 
an  assignee  of  a  debt,  who  could  not  have  sued  in  his  own 
name  ;  and  the  consideration  was  held  to  be  sufficient.  It 
was  held,  in  older  cases,  that  the  consideration  was  not  suffi- 
cient, unless  the  assignee  had  a  letter  of  attorney  to  sue  and 
release.  (/)  As  seen,  ante  139,  a  promise  by  an  executor  or 
administrator,  in  consideration  of  forbearance  to  sue,  is  upon 

(a)  Packard  v.  Richardson,  17  Mass.  129.  Parker  v.  Carter,  4  Munf. 
273.     Bixler  v.  Ream,  3  Pennsyl.  282. 

(h)  May  v.  Alvares,  Cro.  Eliz.  387.  Com.  Dig.  Assumpsit,  B.  1.  2.  2 
Bibb,  30.  1  Saund.  211  note.  Templeton  v.  Bascom,  33  Verm.  132.  As  to 
the  evidence  of  an  agreement  to  forbear,  see  7  Conn.  528.  11  Met.  172.  8 
Cush.  88.     5  Gray,  553. 

(c)  Dowdenay  v.  Oland,  Cro.  Eliz.  768.  And  see  Pooly  v.  Gilberd,  2 
Bulst.  41. 

{(1)  2  Saund.  137  c.  d.  note.  Bidwell  v.  Catton,  Hob.  216.  Rippon  v. 
Norton,  Yelv.  1.  Harris  v.  Richards,  Cro.  Car.  272.  Elting  r.  Vanderlyn,  4 
Johns.  237.     King  v.  Weeden,  Style,  264. 

(e)  Reynolds  v.  Prosser,  Hardr.  71.  Davison  v.  Hanslop,  T.  Ray.  211  and 
2  Lev.  20.  Quick  v.  Copleston,  1  Sid.  242.  Edwards  v.  Kelly,  6  M.  &  S. 
204.  Jennison  v.  Stafford,  1  Cush.  168.  Robinson  v.  Gould,  11  Cush.  55. 
Rood  V.  Jones,  1  Doug.  (Mich.)  188. 

(/)  See  1  Rol.  Ab.  20,  pi.  11,  12.  Reynolds  v.  Prosser,  Hardr.  74,  and 
Pet  V.  Bridgwater,  there  cited. 


OP   THE   CONSIDERATION.  173 

sufficient  consideration,  and  will  bind  him  personally,  though 
he  has  not  assets,  (a) 

In  Moore,  854,  it  is  said  that  the  executor's  "  promise  im- 
plies assets."  This,  however,  cannot  be  the  true  ground  of 
these  decisions ;  for  a  mere  promise  to  pay,  without  any  new 
consideration,  is  void,  if  there  be  no  assets.  And  yet  the 
promise  implies  assets  in  this  instance  as  much  as  in  the 
other,  (b) 

The  usual  consideration  of  the  guaranty  of  a  note  or  other 
engagement,  when  undertaken  after  the  note,  &c.,  is  made,  is 
the  forbearance  extended  to  the  original  promisor.  And  (as 
before  stated)  unless  there  be  some  new  consideration,  such 
undertaking  is  nudum  pactum,  (c) 

The  cases  already  cited,  and  many  others,  show  that  not 
only  forbearance  to  sue,  but  also  forbearing  to  insist  upon, 
payment  when  it  would  be  made  without  suit,  if  demanded, 
forbearing  to  levy  an  execution,  or  to  take  out  or  execute 
other  process,  is  a  good  consideration  for  a  promise,  either  by 
the  party  to  whom  the  forbearance,  &c.,  is  given,  or  by  a  third 
person,  (d)  So  of  withdrawing  objections  to  the  probate  of 
a  will,  (e)  and  forbearing  to  protest  a  bill  of  exchange  drawn 
on  the  party  promising.  (/) 

Lord  Mansfield  and  Ashhurst,  J.,  are  reported  (g)  to  have 
held  that  a  promise  by  a  judgment  debtor  to  pay  debt  and 
cost,  in  consideration  of  a  stay  of  execution,  was  not  suffi- 
cient to  support  an  action  ;  as  it  was  turning  a  judgment  debt 
into  a  debt  upon  simple  contract.  This  was  an  extrajudicial 
opinion,  and  contrary  to  an  adjudged  case  (h)  in  the  reign  of 
Elizabeth.      In   the   case    of    Tanner  v.  Hague,    also,    {{)  a 

(a)  1  Saund.  210,  note  (1).  Treford  v.  Holmes,  Button,  108.  Palmer's 
case,  Hetley,  62.     Porter  v.  Bille,  1  Freeman,  125.     2  Saund.  137  c.  note. 

(b)  See  Pearson  v.  Henry,  5  T.  R.  8.     Browne's  case,  1  Freeman,  409. 

(c)  See  King  v.  Upton,  4  Greenl.  387.     Ulen  v.  Kittredge,  7  Mass.  233. 

(d)  Style,  395,  440.  Cro.  Eliz.  868,  909.  Godb.  159,  pi.  220.  1  Sid.  38. 
Hutton,  63.  2  Eeble,  200.  1  Salk.  28.  1  B.  &  Ad.  603.  10  Mass.  230. 
Yelv.  20.     See  also  Newsom's  case,  Clayton,  139. 

(e)  5  Pick.  393,  394,  by  Parker,  C.  J. 

(/)  Pinchard  v.  Fowke,  Style,  416.  (g)  Cowp.  129. 

(h)  Tisdale's  case,  Cro.  Eliz.  758.  (i)   7  T.  R.  420. 


174  LAW   OF   CONTRACTS. 

defendant  was  discharged  from  execution  on  his  undertaking 
to  pay  the  debt  on  a  future  day,  and  counsel  admitted  that 
there  was  a  remedy  on  the  new  promise. 

It  was  said  by  Jackson,  J.,  14  Mass.  99,  that  if  an  obligor, 
on  being  called  upon  to  pay  his  bond,  should  promise  to  pay 
at  a  future  day,  assumpsit  would  not  lie  on  this  promise.  The 
contrary,  however,  was  adjudged  in  the  case  of  Ashbrooke  v. 
Snape,  Cro.  Eliz.  240.  And  if  the  promise  in  such  case 
were  made  in  consideration  of  forbearance  expressly  given, 
the  foregoing  cases  leave  no  room  to  doubt  that  such  promise 
is  a  good  ground  of  action.  So  if  the  promise  were  made 
on  condition  that  the  obligee  should  make  oath  that  the 
sum  secured  by  the  bond  was  due,  or  should  call  again  upon 
the  obligor  for  payment,  and  the  obligee  had  performed  the 
•condition. 

Forbearance,  it  is  said,  must  be  for  a  certain  time,  or  for  a 
reasonable  time.  And  the  weight  of  authority  is,  that  for- 
bearance per  breve  or  paululum  tempus,  is  not  a  considera- 
tion of  any  value  in  law ;  for  a  suit  may  be  immediately 
brought,  notwithstanding  the  brief  forbearance  of  an  hour  or 
a  day.  And  the  forbearance  promised  must  be  sufficient  at 
the  time  of  the  promise,  and  not  depend  on  the  promisor's 
subsequent  conduct,  (a) 

For  the  same  reason,  forbearance  aliquo  tempore  is  insuffi- 
cient, (b)  "  Pro  aliquo  parvo  tempore,  viz.  some  fortnight  or 
thereabouts,"  was  held  sufficient,  in  the  case  of  Baker  v. 
Jacob,  (c) 

Forbearance  for  a  reasonable  or  convenient  time  is  a  suffi- 
cient consideration.  Id  certum  est  quod  certum  reddi  potest ; 
and  the  court  is  to  decide,  when  the  suit  is  brought,  whether 
the    party   has    forborne    for   such    a    time,    {d)       Indefinite 

(a)  1  Rol.  Ab.  23.  Marshe's  case,  Hetley,  8.  Tricket  ».  Mandlee,  1  Sid. 
45.  Lutwich  V.  Hussey,  Cro.  Eliz.  19.  4  Wash.  C.  C.  151.  1  Pennsyl.  385. 
Contra,  Wborwood  v.  Gybbons,  Gouldsb.  48.  Gill  v.  Harewood,  1  Leon.  61. 
Cooks  V.  Douze,  Cro.  Car.  241.     Palmer's  case,  Hetley,  62. 

(b)  1  Sid.  45.     Cro.  Car.  438.     1  Selw.  N.  P.  (11th  ed.)  45,  46. 

(c)  1  Bulst.  41. 

(jl)  3  Bulst.  207.  Moore,  853.  1  Sid.  45,  294.  1  Lev.  188.  2  M.  &  S. 
60,  by  Lord  Ellenborough. 


OF  THE   CONSIDERATION.  175 

forbearance  was,  at  first,  held  to  be  insufficient ;  (a)  but  it 
is  now  well  settled  that  such  is  a  good  consideration  ;  that 
total  and  absolute,  or  at  least  reasonable,  forbearance  is 
thereby  intended,  (b) 

The  distinction  between  a  "little  time"  or  "  some  time,"  a 
"reasonable  "  or  "  convenient  "  time,  or  an  indefinite  forbear- 
ance, though  somewhat  subtle,  is  sufficiently  intelligible.  A 
consideration  must  be  sufficient  when  the  contract  is  made, 
and  must  not  depend  on  subsequent  events,  (c)  Forbearance 
for  a  "  little  time,"  &c,  is  wholly  uncertain,  and  the  courts 
cannot  decide  what  is  a  little  time,  within  the  meaning  of 
the  parties.  And  though  a  reasonable  or  a  long  time  may 
be  afterwards  given  to  the  promisor,  yet  it  does  not  render 
the  original  consideration  sufficient.  Whereas,  general  for- 
bearance, or  for  a  convenient  or  reasonable  time,  is  a  subject 
of  judicial  understanding,  and  must  import,  at  the  time  of  the 
contract,  such  a  forbearance  as  the  courts  will  hold  to  be  suffi- 
cient. 

In  declaring  on  a  promise  made  upon  such  consideration, 
the  plaintiff  must  allege  the  time  of  forbearance  actually 
given,  and  he  must  prove  it ;  and  if  it  be  judged  reasonable 
and  sufficient,  the  action  will  be  sustained,  (d) 

Forbearance  is  not  a  good  consideration  to  support  a  prom- 
ise, unless  there  is  a  good  cause  of  action.  It  must  be  a  for- 
bearance of  what  might  be  legally  enforced.  Therefore, 
where  an  obligee  released  one  of  the  joint  obligors,  and  the 
other  promised  payment,  in  consideration  of  forbearance,  it 
was  held  to  be  nudum  pactum ;  for  a  release  of  one  is  a  dis- 
charge of  both,  (e)     So  of  a  promise  by  an  heir  to  pay  the 

(a)  Philips  V.  Sackford,  Cro.  Eliz.  455. 

(h)  Cowlin  V.  Cook,  Latch,  151  and  Noy,  83.  Anon.  1  Freeman,  66. 
Theme  v.  Fuller,  Cro.  Jac.  397.  Beven  v.  Cowling,  Poph.  183.  Mapes  v. 
Sidney,  Cro.  Jac.  683  and  Button,  46.  Maynell  v.  Mackallye,  Style,  459. 
Barnehurst  v.  Cabbot,  Hardr.  5.  Clark  v.  Russel,  3  Watts,  213.  Hamaker 
V.  Eberley,  2  Binn.  506.  Lonsdale  v.  Brown,  4  Wash.  C.  C.  151.  See 
Semple  v.  Pink,  1  Exch.  74,  as  to  the  language  which  imports  forbearance 
for  a  reasonable  time. 

(c)  By  Dodderidge,  J.,  Poph.  183. 

(d)  Hardr.  5.     4  Johns.  237.     4  Greenl.  387. 

(e)  Hammon  v.  Roll,  March,  202.     Herring  v.  Dorell,  8  Dowl.  P,  C.  604. 


176  LAW   OF   CONTRACTS. 

bond  of  his  ancestor  when  he  is  not  expressly  bound  in  the 
bond  ;  (rt)  and  of  a  widow  to  pay  a  note  given  by  her  while 
under  coverture,  or  her  husband's  debts  ;  (b)  and  of  a  hus- 
band, after  his  wife's  death,  to  pay  a  debt  contracted  by  her 
before  marriage,  (c)  or  a  debt  which  she  owed  as  executrix  or 
administratrix,  (d)  So  of  a  promise  in  consideration  of  a 
discharge  from  a  wrongful  arrest,  (e)  Nor  is  forbearance  to 
sue  a  good  consideration  for  a  promise,  where  it  does  not  ap- 
pear that  there  was  any  person,  in  rerum  ncUura,  liable  to 
be  sued.  (/)  There  are  cases,  however,  in  which  forbearance, 
without  mentioning  the  person  to  be  forborne,  is  said  to  be 
forbearance  of  everybody ;  and  in  these  cases,  if  there  be 
any  person  liable  to  pay,  the  promise  will  be  binding,  though 
the  defendant  be  not  himself  liable,  (g-) 

An  agreement  by  a  surety  to  forbear  a  suit  against  the  prin- 
cipal, after  he  shall  have  paid  the  principal's  debt,  is  a  good 
consideration  for  a  promise  of  reimbursement  by  a  third  per- 
son, though  the  surety  had  no  cause  of  action  at  the  time  of 
the  agreement,  (h)  "  Forbearance  to  sue  after  the  cause  of 
action  attached  would  be  as  great  an  injury  to  the  plaintiif, 
as  the  immediate  forbearance  to  sue  a  cause  of  action  exist- 
ing at  the  time  of  the  promise,"  (?')  This  decision  is  within 
the  principle  of  the  other  cases,  and  not  an  exception  to  it. 
It  stands  on  the  same  ground  with  other  prospective  contracts. 
If  there  had  been  no  cause  of  action  against  the  principal, 
on  the  surety's  paying  the  debt,  or  if  the  surety  had  him- 
self been  fully  indemnified,  the  decision  would  have  been 
different. 

(a)  Barber  v.  Fox,  2  Saund.  136,  and  note  to  that  case. 

(b)  Loyd  V.  Lee,  1  Strange,  94.     Goodwin  v.  Willoughby,  Latch.  142  and 
Poph.  177.     See  post.  181.     ■ 

(c)  Smith    V.  Jones,  Yelv.    184,  1  Bulst.  44,  Owen  133  and  Cro.  Jac. 
257. 

(d)  Lea  v.  Minne,  Yelv.  84  and  Cro.  Jac.  110. 

(e)  Willes,  482.     Godb.  358.     Palmer,  394. 

(/)  Jones  17.  Ashburnham,  4  East,  455.     Rosyer  v.  Langdale,  Style,  248. 
And  see  Gould  v.  Armstrong,  2  Hall,  266. 

(g)  Hume  v.  Hinton,  Style,  305.     By  Twisden,  J.,  T.  Ray.  32. 

(h)  Hamaker  v.  Eberley,  2  Binn.  506.  (i)  By  Tilghman,  C.  J. 


OF   THE   CONSIDERATION.  177 

Surceasing  Suit  and  Compromise, 
Surceasing  a  suit  at  law  or  in  equity  is  a  sufficient  con- 
sideration of  a  promise  to  pay  a  stipulated  sum.  (a)  And 
this  is  so  when  a  suit  is  instituted  to  try  a  question  respecting 
which  the  law  is  doubtful,  or  when  the  parties  suppose  the 
fact,  which  is  the  subject  of  the  agreement,  is  doubtful,  (b) 
So  the  withdrawing  of  a  defence  to  a  suit  is  a  sufficient  con- 
sideration of  a  promise  to  accept  a  smaller  sum  in  satisfaction 
of  a  larger,  (c)  So  the  withdrawing  by  an  heir  of  a  caveat 
to  the  proving  of  the  will  of  his  ancestor,  is  a  sufficient  con- 
sideration to  support  a  promise  by  the  devisees  to  pay  him  a 
specified  sum.  (d)  But  it  must  appear  that  there  is  some 
reasonable  ground  for  contesting  the  probate  of  the  will,  (e) 
A  note  given  by  a  defendant,  on  the  plaintiff's  ending  an 
action  of  slander  against  him,  was  held  to  be  on  a  legal  con- 
sideration, though  the  words  sued  for  were  not  actionable.  (/) 
So  of  an  agreement  not  to  make  defence  to  an  instituted  suit, 
but  to  let  it  abide  the  result  of  another  case  depending  on  the 
same  facts,  upon  a  promise  of  an  abatement  of  the  claims  in 
suit,  (g) 

The  compromise  of  a  claim  may  be  a  good  consideration 
for  a  promise,  although  litigation  has  not  been  actually  com- 
menced. But,  in  that  class  of  cases,  when  a  suit  is  brought 
on  the  promise,  it  may  be  shown  in  defence  that  there  was  no 
legal  ground  for  the  claim  that  was  thus  compromised,  and 

(a)  Stephens  v.  Squire,  5  Mod.  205  and  Comb.  362.  Smith  v.  Monteith,  13 
Mees.  &  VVelsb.  437,  441.     Pooly  v.  Gilberd,  2  Bulst.  41. 

(b)  Lonjrridge  v.  Dorville,  5  B.  &  Aid,  117.  13  Mees.  &  Welsb.  supra. 
Russell  V.  Cook,  3  Hill,  504.  Perkins  v.  Gay,  3  Serg.  &  R.  327.  Zane's 
Devisees  v.  Zane,  6  Munf.  406.  Trigg  v.  Read,  5  Humph.  529.  Taylor  v. 
Patrick,  1  Bibb,  168.  Blake  v.  Peck,  11  Verm.  483.  Durham  v.  Wadling- 
ton,  2  Strobhart  Eq.  258.     1  Story  on  Eq.  §  131.     2  Mich.  145. 

(c)  Cooper  v.  Parker,  14  C.  B.  118  and  15  ib.  822. 
{(l)  Seaman  v.  Seaman,  12  Wend.  381. 

(e)  lb.     Busby  v.  Conoway,  8  Maryl.  55.     Allen  v.  Prater,  35  Alab.  169. 
(/)   O'Keson  v.  Barclay,  2  Pennsyl.  531.    And  see  1  Yroom,  323. 
(g)  Barlow  v.  Ocean  Ins.  Co.  4  Met.   270.      See  also  Union  Bank  of 
Georgetown  v.  Geary,  5  Peters,  99,  114.     Fishy.  Thomas,  5  Gray,  45. 
12 


178  LAW   OF   CONTRACTS. 

the  promise  will  thereupon  be  held  void.  "  Unless,"  said 
Blackburn,  J.  (1  Best  &  Smith,  569)  "  there  was  a  reasonable 
claim  on  the  one  side,  which  it  was  bona  fide  intended  to  pur- 
sue, there  would  be  no  ground  for  a  compromise."  See  13 
Illinois,  140.  A  note  or  bill  given  in  consideration  of  what  is 
supposed  to  be  a  debt  is  without  consideration,  if  it  appears 
that  there  was  a  mistake  in  fact,  as  to  the  existence  of  the 
debt ;  {a)  or  if  a  note  is  given  on  the  payee's  misrepresenta- 
tion, though  not  fraudulent,  that  the  maker  is  indebted  to  him 
in  the  sum  for  which  the  note  is  given  ;  whether  that  misrepre- 
sentation is  in  matter  of  fact  or  of  law.  {b) 

Where  each  party  agreed  to  give  up  and  withdraw  his  claim 
against  the  other,  in  consideration  whereof  one  promised  to 
pay  to  the  other  an  annuity,  it  was  held  that  this  promise  was 
on  a  sufficient  consideration,  {c) 

See,  on  this  subject,  3  White  &  Tudor's  Lead.  Cas.  in 
Equity  (3d  Amer.  ed.)  406  Sf  seq. 

Moral    Obligation. 

It  is  frequently  asserted  in  the  books,  that  a  moral  obli- 
gation is  a  sufficient  consideration  for  an  express  promise, 
though  not  for  an  implied  one.  The  terms  "  moral  obligation," 
however,  are  not  to  be  understood  in  their  broad  ethical  sense. 
The  present  law  on  this  subject  is  generally  acknowledged,  in 
England  and  this  country,  to  be  as  stated  in  a  note  to  Wen- 
nail  V.  Adney,  3  Bos.  &  Pul.  352,  namely,  that  "  an  express 
promise  can  only  revive  a  precedent  good  consideration,  which 
might  have  been  enforced  at  law,  through  the  medium  of  an 
implied  promise,  had  it  not  been  suspended  by  some  positive 
rule  of  law,  but  can  give  no  original  right  of  action,  if  the 
obligation    on  which  it  is  founded   never    could  have   been 

(a)  Bell  V.  Gardiner,  4  Scott  N.  R.  621  and  4  Man.  &  Grang.  11.  In  this 
case,  the  defendant  had  given  a  note  in  satisfaction  of  a  bill  of  exchange 
which  he  had  accepted  for  another's  accommodation,  not  knowing  that  the  bill 
had  been  altered  and  that  he  therefore  was  not  liable  thereon,  though  he  had 
the  means  of  knowing  that  fact.     And  see  4  Denio,  189. 

{}))  Southall  V.  Rigg  and  Forman  v.  Wright,  11  C.  B.  494,  495. 

(c)  Llewellen  v.  Llewellen,  8  Dowl.  &  Lowndes,  318. 


OP  THE   CONSIDERATION.  179 

enforced  at  la\%'',  though  not  barred  by  any  legal  maxim  or 
statute  provision."  Hence  it  is  held  that  an  express  promise 
to  pay  a  witness  for  loss  of  time  more  than  his  legal  fees  for 
travel  and  attendance  will  not  bind  the  promisor,  {a)  Nor  a 
promise  by  a  father  to  pay  expenses  incurred  in  relieving 
his  adult  son  suddenly  taken  sick  at  a  distance  from  his 
friends ;  (b)  nor  a  promise  by  a  son  to  pay  fof  support  fur- 
nished to  his  father,  (c)  Nor  the  promise  of  a  grandfather  to 
pay  for  services  that  have  been  rendered  to  his  grandchild,  (d) 
Nor  a  promise  to  pay  damages  for  detaining  money,  beyond 
the  amount  of  interest  thereon,  (e)  And  when  a  deed  is 
given  of  land  described  as  of  a  certain  number  of  acres, 
which,  upon  being  measured,  is  found  to  be  less,  a  promise  by 
the  grantor  to  pay  back  a  proportional  part  of  the  price,  will 
not  sustain  an  action.  (/)  A  promise  to  pay  for  labor  on  land 
entered  upon  and  claimed  by  the  plaintiff  as  his  own,  but  re- 
covered from  him  by  the  defendant  in  a  suit  at  law,  will  not 
support  an  action,  (g-)  Nor  a  promise  by  one  to  pay  a  demand 
which  he  had  voluntarily  released,  for  the  purpose  of  render- 
ing himself  a  competent  witness.  (A) 

(a)  Willis  V.  Peckham,  1  Brod.  &  Bing.  515  and  4  Moore,  300.  And  see 
1  B.  &  Ad.  956. 

(6)  Mills  V.  Wyman,  3  Pick.  207,  In  Besfich  v.  Coggil,  Palmer,  559,  the 
court  were  equally  divided  on  the  question  whether  a  father  was  liable  on  an 
express  promise  to  pay  expenses,  incurred  in  Spain,  for  the  burial  of  his  son. 

(c)   Cook  V.  Bradley,  7  Conn.  57.     Parker  v.  Carter,  4  Munf.  273. 

(c?)  Elicott  V.  Peterson's  Ex'r,  4  Maryl.  476,  492. 

(e)  Phetteplace  v.  Steere,  2  Johns.  442. 

(/)  Smith  V.  Ware,  13  Johns,  259.     Williams  v.  Hathaway,  19  Pick,  387, 

ig)  Frear  v.  Hardenbergh,  5  Johns.  272.  Society  v.  Wheeler,  2  Gallis, 
143.  See  also  McFarland  v.  Mathis,  5  English,  560,  Carson  v.  Clark,  1 
Scammon,  113.     Hutson  v.  Overture,  ib.  170.     Carr  v.  Allison,  5  Blackf.  63, 

(A)  Valentine  v.  Foster,  1  Met.  520.  The  distinction,  taken  in  this  case, 
between  the  validity  of  a  promise  to  pay  a  claim  that  is  discharged  by  opera- 
tion of  positive  law,  and  a  claim  that  is  released  or  otherwise  discharged  by 
the  voluntary  act  of  the  claimant,  has  been  recognized  and  applied  by  other 
courts.  See  Ex  parte  Hall,  1  Deacon,  171.  Stafford  v.  Bacon,  1  Hill's  (N, 
Y.)  Rep.  532.  Warren  v.  Whitney,  24  Maine,  562.  Lewis  v.  Simons,  1 
Handy,  82.  Montgomery  v.  Lampton,  3  Met.  (Ky.)  519.  Shepard  v.  Rhodes, 
7  R.  1.474.     Contra,  Willing  v.  Peters,  12  Serg.  &  R,  177, 


180  LAW   OF   CONTRACTS. 

Other  express  promises,  called  gratuitous,  are  held  to  be 
void,  as  will  hereafter  be  seen,  merely  for  want  of  considera- 
tion, though  the  moral  obligation  of  the  promisor,  in  its  ethi- 
cal sense,  is  most  clear. 

Among  the  cases  sometimes  cited  to  prove  that  a  moral 
obligation,  in  its  extended  sense,  is  a  sufficient  consideration 
for  an  express  promise,  is  Watson  v.  Turner,  Bui.  N.  P.  129, 
147,  That  was  an  action  against  the  overseers  of  a  parish  to 
recover  for  supplies  furnished  to  a  pauper,  settled  in  the  par- 
ish, and  boarding  out  of  it,  under  an  agreement  made  by  the 
overseers  and  the  plaintiff,  and  a  promise  by  them,  after  the 
supplies  were  furnished,  to  pay  therefor,  was  held  to  bind 
them.  "  For,"  says  the  book,  "  overseers  are  under  moral 
obligation  to  support  the  poor."  In  Atkins  v.  Banwell,  2  East, 
505,  which  was  an  action  against  overseers  for  supplies  to  a 
pauper  in  a  parish  where  he  was  not  settled,  it  was  held,  that 
as  no  express  promise  had  been  made,  the  action  would  not 
be  sustained ;  and  Lord  Ellenborough  said  that  the  promise 
in  the  former  case  made  all  the  difference  ;  for  a  moral  obliga- 
tion was  sufficient  to  support  an  express,  but  not  an  implied, 
promise.  The  ground,  however,  on  which  Watson  v.  Turner 
can  be  upheld,  was  the  legal  obligation  of  the  defendants  ; 
for  it  is  established  law  in  England,  that  overseers  are  legally 
bound  to  supply  paupers  casually  in  the  parish,  and  paupers 
settled  there,  if  residents,  or  if  residing  elsewhere  under  their 
charge,  {a)  So  the  case  of  Lord  Suffield  v.  Bruce  [h)  might, 
it  is  believed,  have  been  sustained  on  the  ground  of  legal  obli- 
gation, though  Lord  Ellenborough,  before  whom  the  case  was 
tried,  spoke  qnly  of  moral  obligation  as  the  consideration  of 
the  defendant's  express  promise. 

The  following  are  cases  in  which  an  express  promise  has 
been  held  sufficient  to  bind  the  promisor:  A  promise  to  pay 
a  debt  barred  by  the  statute  of  limitations,  (c)   or  discharged 

(a)  Simmons  v.  Wilmott,  3  Esp.  R.  01.  Lamb  v.  Bunce,  4  M.  &  S.  277. 
Newby  v.  Wiltshire,  4  Doug.  286  and  Cald.  527.  Wing  v.  Mill,  1  B.  &  Aid. 
104.     Paynter  v.  Williams,  I  Crompt.  &  Mees.  810. 

(li)  2   Stark.  R.  175.     Chit,  on  Con.  (10th  Amer.  ed.)  48. 

(c)   Chit,  on  Con.  (10th  Amer.  ed.)  922. 


OP  THE   CONSIDERATION.  181 

under  a  bankrupt  or  an  insolvent  law.  (a)  So  of  an  adult's 
promise  to  pay  a  debt  contracted  during  his  infancy,  (b)  and 
of  a  borrower's  promise  to  pay  principal  and  lawful  interest 
of  a  sum  lent  to  him  on  a  usurious  contract,  (c)  So  of  the 
promise  by  the  drawer  or  indorser  of  a  bill  of  exchange  or 
the  indorser  of  a  promissory  note,  to  pay  it,  though  he  has  not 
received  seasonable  notice  of  the  default  of  other  parties,  pro- 
vided he  is  aware  of  the  facts,  (d)  So  of  a  promise  by  a 
lessor  to  pay  for  repairs  made  by  his  lessee,  according  to  an 
agreement  not  inserted  in  the  lease,  [e)  And  where  a  debtor 
paid  part  of  the  debt  and  took  a  receipt,  and  the  creditor 
afterwards  recovered  judgment  for  the  whole  debt,  by  reason 
of  the  debtor's  omission  to  show  the  receipt  in  reduction  of 
the  claim  sued  for,  the  creditor's  promise  to  refund  the  money 
before  received  by  him,  if  the  debtor  had  a  receipt  therefor, 
was  held  to  be  binding.  {/)  In  Doty  v.  Wilson,  14  Johns.  381, 
a  promise  to  a  sheriff,  by  one  whom  he  had  voluntarily  suffered 
to  escape  from  his  custody  on  final  process,  to  repay  to  the 
sheriff  the  amount  which  he  had  been  compelled  to  pay  to  the 
original  creditor,  was  held  valid. 

In  Lee  v.  Muggeridge,  5  Taunt.  36,  a  married  woman  gave 
a  bond  to  repay  money  advanced  to  her  son  in  law ;  and 
after  her  husband's  death  she  made  a  written  promise  that  her 
executors  should  settle  the  bond  ;  and  it  was  decided  that  an 
action  at  law  was  maintainable  against  her  executors  on  that 
promise.  That  case  clearly  oppugns  the  rule  in  3  Bos.  &  Pul. 
252,  note,  inasmuch  as  there  was  no  cause  of  action  which 
could  ever  have  been  enforced  at  law ;  the  contracts  of  a  mar- 
ried woman  being  void  ;  and  as  seen,  ante  176,  a  promise  by 
her,  in  consideration  of  forbearance,  is  therefore  void.  And 
that  case  is  not  affirmed  by  any  subsequent  English  decision, 

(c)  Cowp.  544.  1  Chit.  R.  609.  7  Johns.  36.  8  Mass.  127.  6  Cush. 
241.    Hayes,  484. 

(b)  Ante,  55-58. 

(c)  Barnes  v.  Headley,  2  Taunt.  184.     Early  v.  Mahon,  19  Johns.  147. 
((/)  Treatises  on  Bills  and  Notes. 

(e)   Seago  v.  Deane,  4  Bing.  459  and  1  Moore  &  Payne,  227. 

(/)  Bentley  v.  Morse,  14  Johns.  468,  approved  in  2  Barb.  425,  426. 


182  LAW   OF   CONTRACTS. 

but  has  been  virtually,  though  not  in  express  terms,  overruled 
by  the  cases  of  Littlefield  v.  Shee,  2  B.  &  Ad.  811,  and  East- 
wood V.  Kenyon,  11  Ad.  &  El.  438  and  3  P.  &  Dav.  276. 
And  it  has  been  denied  by  courts  in  this  country,  (a) 

In  Viser  ii.  Bertrand,  14  Ark.  267,  and  in  "Wilson  v.  Burr, 
25  Wend.  386,  a  promise  by  a  woman,  after  she  had  obtained 
a  divorce  from  her  husband,  to  pay  the  fees  of  her  counsel  in 
obtaining  the  divorce,  was  held  to  bind  her.  And  in  Goulding 
V.  Davidson,  26  N.  Y.  Rep.  604,  where  a  married  woman  car- 
ried on  trade  in  her  own  name  as  an  unmarried  woman,  and 
bought  goods  of  those  who  were  ignorant  of  her  coverture,  it 
was  decided  that  she  was  bound  by  her  promise,  after  her  hus- 
band's death,  to  pay  for  them,  (b) 

There  are  several  cases  in  Pennsylvania,  in  which  a  moral 
obligation  has  been  held,  contrary  to  the  generally  adopted  doc- 
trine, to  be  a  sufficient  consideration  of  an  express  promise,  (c) 

Mutual  Promises. 

One  promise  is  a  good  consideration  for  another.  Even 
a  voidable  promise  is  sufficient,  as  has  been  seen  in  the  case 
of  a  promise  by  an  infant.     Aliter  of  a  void  promise.     Thus 

(a)  Watkins  v.  Halstead,  2  Sandf.  311.  Kennerly  v.  Martin,  8  Missouri, 
698,  Waters  t?.  Bean,  15  Georgia,  360.  Shepard  v.  Rhodes,  7  R.  1.473. 
Watson  V.  Dunlap,  2  Cranch  C.  C.  Rep.  14. 

(6)  In  Lee  v.  Muggeridge,  it  appeared  in  the  plaintiff 's  declaration  that  the 
wife  had  an  estate  settled  to  her  separate  use.  And  though  the  court,  in  giving 
judgment,  took  no  notice  of  this  fact,  yet  it  has  sometimes  been  suggested  as  a 
reason  for  supporting  that  judgment.  But  when  the  fact  of  a  wife's  having 
separate  property  does  not  appear  on  the  pleadings,  it  is  held  that  a  promise  to 
pay,  made  by  her,  after  her  husband's  death,  is  not  binding.  Ferrrers  v.  Cos- 
tello,  Longfield  &  Townsend,  292.  Vance  v.  Wells,  8  Alab.  399.  In  the  first 
of  these  cases,  the  court  expressed  no  opinion  on  the  question  whether,  if  that 
fact  had  appeared  on  the  pleadings,  the  promise  would  have  bound  the  woman. 
But  in  the  other  case,  it  was  said,  extrajudicially,  that  if  goods  are  furnished 
to  a  married  woman,  on  the  faith  of  her  separate  estate,  or  if  she  executes  a 
note  as  surety  for  her  husband,  her  promise,  after  his  death,  that  she  will 
make  payment,  binds  her. 

(c)  Greevesr.  McAllister,  2  Binn.  591.  Willing  v.  Peters,  12  Serg.  &  R. 
182.  Hemphill  v.  MeClimans,  24  Penn.  State  Rep.  367.  But  in  Snevily  v. 
Read,  9  Watts,  396,  and  in  Kennedy  v.  Ware,  1  Barr,  445,  the  contrary  was 
held. 


OP  THE  CONSIDERATION.  183 

reciprocal  promises  of  marriage  are  valid,  {a)  So  of  wagers, 
where  they  are  recognized  as  valid  contracts,  (b)  So  of  prom- 
ises to  sell  and  deliver  goods  and  to  pay  for  them,  (c)  and  of 
divers  other  mutual  promises,  (d) 

Mutual  promises  must  be  made  at  the  same  time,  or  they 
are  without  consideration  and  void,  (e) 

In  some  of  the  cases  above  referred  to,  where  the  promise 
of  one  party  was  held  to  be  the  consideration  of  the  other's 
promise,  it  would  probably  be  held  at  this  day,  that  the  per- 
formance of  the  promise  was  the  true  consideration  ;  and 
therefore  the  form  of  declaring  there  adopted  would  not  now 
be  sanctioned  by  the  courts.  (/)  But  this  doctrine  belongs 
to  the  subject  of  pleading. 

Gratuitous  promises  and  services. 

Merely  gratuitous  promises,  as  before  stated,  are  void.  Thus 
natural  affection  is  not  a  sufficient  consideration  to  support 
a  promise,  (g)  A  promissory  note  given  by  a  father  to  a  son, 
on  such  consideration  only,  is  void,  (h)  So  of  a  note  given 
to  a  sister,  in  consideration  that  her  father  had  bequeathed  to 
her  a  smaller  portion  of  his  estate  than  to  the  promisor,  (i) 
So  of  a  note  given  by  a  testator,  in  his  last  sickness,  to  his 
son  in  law,  for  the  purpose  of  more  effectually  equalizing  the 
distribution  of  his  property  among  his  children  than  he  had 

(a)  Holcroft  V.  Dickenson,  Carter,  233  and  1  Freeman,  95,  347.  Harrison  v. 
Cage,  5  Mod.  412  and  12  Mod.  214.     Baker  v.  Smith,  Style,  295,  303. 

(b)  Jackson  v.  Colegrave,  Carth.  338.  Martindale  v.  Fisher,  1  Wils.  88. 
2  Chit.  PI.  (6th  Amer.  ed.)  227  ^  seq. 

(c)  Bettisworth  v.  Campion,  Yelv.  134.     Nichols  w.  Raynbred,  Hob.  88. 

(d)  Cro.  Eliz,  543,  703,  888.  4  Leon.  3.  Hardr.  102.  Comb.  256.  8 
Johns.  304. 

(e)  Ante,  21,  22.  Livingston  v.  Rogers,  1  Caines,  583.  Tucker  v.  Woods, 
12  Johns.  190. 

(/)   See  1  Saund.  320,  note  4. 

(o)  Plowd.  302.  Harford  v.  Gardiner,  2  Leon.  30.  Bret  v.  J.  S.  and  wife, 
Cro.  Eliz.  756.     Chit,  on  Con.  (10th  Amer.  ed.)  27,  50. 

(A)  Fink  v.  Cox,  18  Johns.  145.  And  see  HoUiday  v.  Atkinson,  5  Barn.  & 
Cres.  501  and  8  Dowl.  &  Ryl.  163. 

(i)  Hill  V.  Buckminster,  5  Pick.  391. 


184  LAW   OF   CONTRACTS. 

done  by  a  will  previously  executed,  (a)  So  of  a  note  given  by 
a  father  to  his  son  in  consideration  of  his  releasing  his  interest 
in  the  promisor's  estate,  (b)  So  of  a  note  given  by  a  father 
to  his  son  in  consideration  of  the  son's  ceasing  to  com- 
plain of  the  distribution  which  the  father  had  made  of  his 
estate,  (c)  So  of  a  note  given  by  a  sister,  who  inherited  her 
brother's  property,  because  she  believed  that  if  he  had  made  a 
will,  he  would  have  left  to  the  payee  of  the  note  as  much  as 
the  amount  thereof  (d) 

Merely  gratuitous  services  are  no  consideration  for  an  im- 
plied promise  to  reward  them :  As  voluntary  assistance  in 
saving  property  from  fire,  (e)  and  other  services  rendered  with- 
out a  precedent  request,  (/)  The  law  is  the  same  when  one 
pays  another's  debt  without  request,  (g)  "  Perhaps  it  is  better 
for  the  public,"  said  Eyre,  C.  J.  2  H.  Bl.  259,  «  that  these  vol- 
untary acts  of  benevolence  from  one  man  to  another,  which 
are  charities  and  moral  duties,  but  not  legal  duties,  should  de- 
pend altogether  for  their  reward  upon  the  moral  duty  of 
gratitude." 

An  exception  to  this  rule  is  found  in  the  marine  law  of  all 
civilized  nations,  in  the  recompense  which  is  awarded,  under 
the  name  of  salvage,  for  the  rescue  of  property  from  the  perils 
of  the  sea.  Salvors  have  a  lien  upon  the  property  saved,  and 
the  amount  of  compensation  is  determined  by  a  court  of  ad- 
miralty, according  to  the  circumstances,  (h)  But  those  who 
secure  property  found  afloat  in  a  river,  or  beasts  found  astray, 
have  no  such  lien  thereon,  and  cannot  lawfully  withhold  the 
property  from  the  owner,  on  his  refusal  to  compensate  them 

(a)  Parish  v.  Stone,  14  Pick.  198.  See  Graves  v.  Graves,  7  B.  Monroe, 
214. 

(b)  Loring  v.  Sumner,  23  Pick.  98. 

(c)  White  V.  Bluett,  24  Eng.  Law  &  Eq.  434. 

(d)  McCarroll  v.  Reardon,  4  Allen  (N.  B.)  261. 

(e)  Bartholomew  v.  Jackson,  20  Johns.  28. 

(/■)   1  McCord,  22.     5  Johns.  272.     2  Gallis.  143. 

((/)  Jones  V.  Wilson,  3  Johns.  434.     Beach  v.  Vandenburgh,  10  ib.  361. 

(A)  Abbott  on  Shipping  (5th  Amer.  ed.)  659  §*  seq.  Maude  &  Pollock  on 
Shipping,  c.  x.  2  Parsons  on  Maritime  Law,  595  Sf  seq.  Sprague's  Decis. 
57,  91,  282,  499.     Newberry,  329,  341,  412,  421,  438.     Daveis,  20,  6L 


OP  THE   CONSIDERATION.  185 

for  their  services,  but  are  answerable  to  him  in  an  action  of 
trover,  (a)  Yet  though  the  finder  has  no  lien  for  his  services, 
it  seems  that  he  may  recover  of  the  owner  payment  therefor, 
in  an  action  on  an  implied  promise.  (5) 

Subscriptions. 

Many  actions  have  been  brought,  in  this  country,  on  sub- 
scription papers  in  which  the  defendants  promised  to  contrib- 
ute certain  sums  in  aid  of  some  public  object ;  as  the  building 
of  a  church,  college  or  academy,  support  of  public  worship, 
&c.,  and  though  there  is  not  a  uniformity  in  the  decisions  on 
the  question  whether  there  is  a  sufficient  legal  consideration 
of  such  promises,  yet  thus  much  is  now  the  generally  adopted 
doctrine,  namely,  that  where  "  something  has  been  done,  or 
some  liability  or  duty  assumed,  in  reliance  upon  the  subscrip- 
tion, in  order  to  carry  out  the  object,  the  promises  are  binding 
and  may  be  enforced,  although  no  pecuniary  advantage  is  to 
result  to  the  promisors."  (c) 

(a)  Nicholson  v.  Chapman,  2  H.  Bl.  254.  Baker  v.  Hoag,  3  Barb.  203. 
Binstead  v.  Buck,  2  W.  Bl.  1117. 

(b)  See  Doctor  &  Student,  c.  51.  Addison  on  Con.  (2d  Amer.  ed.)  444. 
Story  on  Bailm.  §  121  a.  Reeder  t'.  Anderson's  Adin'rs,  4  Dana,  193. 
Preston  v.  Neale,  12  Gray,  222. 

(c)  Underwood  v.  Waldron,  12  Mich.  73,  89.  McDonald  v.  Gray,  11  Iowa, 
508.  Commissioners  of  Canal  Fund  v.  Perry,  5  Ohio,  59.  Peirce  v.  Ruley, 
5  Ind.  69.  Johnston  v.  Wabash  College,  2  Carter,  (Ind.)  555.  Robertson  v. 
March,  3  Scammon,  198.  M'Auley  v.  Billinger,  20  Johns.  89.  Reformed  Prot- 
estant Dutch  Church  v.  Brown,  29  Barb.  335.  George  v.  Harris,  4  N.  Hamp. 
533.  Farmington  Academy  V.  Allen,  14  Mass.  172.  Bryant  v.  Goodnow,  5 
Pick.  228.  Amherst  Academy  v.  Cowls,  6  Pick.  438.  Watkins  v.  Eames,  9 
Cush.  537.  Trustees  of  Church  in  Hanson  v.  Stetson,  5  Pick.  508.  Ives  y. 
Sterhng,  6  Met.  310,  318.  Mirick  v.  French,  2  Gray,  420.  In  several  of  the 
earlier  of  the  above  cited  Massachusetts  cases,  it  was  held,  that  although  some- 
thing had  been  done  towards  effecting  the  object  of  the  subscription,  in  reli- 
ance thereon,  yet  an  action  thereon  could  not  be  supported,  but  that  an  action 
for  money  paid  might  be  maintained.  In  Boutell  v.  Cowdin,  9  Mass.  254, 
where  there  was  a  subscription  for  a  fund  to  be  applied  towards  the  support  of 
the  pastor  of  a  church,  and  one  of  the  subscribers  gave  a  note  for  the  amount 
of  his  subscription,  to  the  deacons  of  the  church,  "  for  the  benefit  of  the  church," 
it  was  decided  that  the  note  was  void  for  want  of  consideration,  and  also  be- 
cause the  deacons  had   no   legal   authority  to  receive  and  manage  a  fund 


186  LAW   OF   CONTRACTS. 

In  Illinois,  where  one  subscribed  a  paper  promising  to  pay 
to  the  county  commissioners  a  sura  for  the  purpose  of  defray- 
ing, in  part,  the  expense  of  a  court  house,  provided  it  should 
be  located  and  erected  on  a  certain  described  lot,  and  the 
house  was  erected  on  that  lot,  it  was  decided  that  the  com- 
missioners could  not  maintain  an  action  on  that  promise ;  be- 
cause, among  other  reasons,  it  was  a  promise  to  pay  them  for 
an  act  which  they  were  required  by  law  to  do,  and  was  there- 
fore void,  being  against  public  policy,  (a) 

Where  one  subscribed  a  sum  towards  building  a  meeting- 
house, and  the  subscription  was  in  its  nature  provisional,  de- 
pending upon  the  amount  that  should  be  subscribed  by  others, 
and  the  building  of  the  house  within  a  reasonable  time,  and 
there  was  a  failure  to  raise  the  required  amount  of  money,  and 
the  project  was  indefinitely  abandoned,  and  nothing  done  for 
several  years,  it  was  held  that  the  subscriber  was  under  no 
legal  or  honorary  obligation  to  pay  his  subscription,  (b) 

Fictitious  subscriptions,  obtained  for  the  purpose  of  affect- 
ing other  subscribers,  render  void  those  that  are  made  after- 
wards, (c) 

established  for  the  support  of  a  minister.  And  in  Phillips  Limerick  Academy 
V.  Davis,  11  Mass.  113,  where  persons  agreed  to  pay  certain  sums  for  erecting 
an  academy,  but  no  promisee  was  named,  it  was  decided  that  for  this  reason 
no  action  could  be  maintained  on  the  promises,  and  also  for  the  reason  that 
there  was  no  legal  consideration  therefor.  These  cases,  and  also  the  case  of 
Bridgewater  Academy  v.  Gilbert,  2  Pick.  579,  were  discussed  in  6  Pick.  434- 
438,  by  Chief  Justice  Parker,  who  virtually  admitted  that  the  first  two  might  be 
sustained  on  the  other  grounds  therein  taken  besides  the  want  of  consideration  ; 
and  he  said  :  "  We  do  not  find  that  it  has  ever  been  decided  that  where  there 
are  proper  parties  to  the  contract,  and  the  promisee  is  capable  in  law  of  carry- 
ing into  effect  the  purpose  for  which  it  is  made,  and  is  in  fact  amenable  to 
law  for  negligence  or  abuse  of  his  trust,  such  contract  is  void  for  want  of  a  con- 
sideration." These  remarks  show  that  he  did  not  regard  the  last  case  (2  Pick. 
579)  as  having  been  decided  on  the  ground  of  want  of  consideration.  And 
Dewey,  J.  in  6  Met.  316,  said  that  the  "change  of  the  location  of  the  edifice" 
towards  the  rebuilding  of  which  he  made  his  subscription,  "  might  have  been  a 
material  circumstance  in  the  case." 

(a)  County  Commissioners  i\  Jones,  Breese,  103. 

(6)  Plunkett  v.  Methodist  Episcopal  Societj-,  3  Cush.  561,  566.  And  see 
Stewart  v.  Trustees  of  Hamilton  College,  2  Denio,  403. 

(c)  Middlebury  College  v.  Adm'rs  of  Loomis,  1  Verm.  189. 


OP  THE   CONSIDERATION.  187 

Assignment  of  a  chose  in  action. 

The  assignment  of  a  chose  in  action  that  is  legally  assign- 
able is  a  good  consideration  of  a  promise,  {a)  Such  assign- 
ment vests  an  equitable  interest  in  the  assignee,  which  courts 
of  law  protect.  And  though  the  mere  assignment  does  not, 
by  the  common  law,  authorize  the  assignee  to  sue  the  assigned 
claim  in  his  own  name  in  a  court  of  law,  {h)  yet  it  is  re- 
garded as  an  authority  to  sue  in  the  name  of  the  assignor ; 
and  the  court  will  not  permit  him  to  interfere  to  the  assignee's 
prejudice,  (c)  When  a  contract  is  in  its  nature  negotiable  and 
is  expressly  so  made,  (as  a  bill  of  exchange  or  promissory  note 
payable  to  order  or  bearer,)  the  promisor  may  be  sued  thereon 
by  the  indorsee  or  bearer,  and  cannot  be  sued  in  the  name 
of  the  original  promisee  without  such  promisee's  consent,  {d) 
In  these  cases,  the  original  consideration,  if  there  were  one, 
and  the  poUcy  of  the  law,  if  there  were  none,  sustains  the 
promise.  But  when  the  contract  is  not  technically  negotia- 
ble, a  promise  to  pay  the  assignee  is  necessary  to  enable  him 
to  sue  in  his  own  name ;  and  on  such  promise  being  made,  he 
may  thus  sue.  (e) 

By  the  statutes'  or  local  usages  of  some  of  the  States  of  the 

(a)  Loderv.  Chesleyn,  1  Sid.  212  and  1  Keble,  744.  Moulsdale  v.  Bin- 
chall,  2  W.  Bl.  820.  Edson  v.  Fuller,  2  Foster,  183,  191.  Moar  v.  Wright, 
1  Venn.  57. 

(6)  A  court  of  chancery  treats  the  assignee  of  a  contract,  which  is  not  ne- 
gotiable, as  the  party  in  interest,  and  allows  him  to  pursue  his  rights  in  such 
court,  in  his  own  name. 

(c)  See  Bac.  Ab.  Assignment,  D.  Addison  on  Con.  C2d  Amer.  ed.)  982, 
983.  Legh  v.  Legh,  1  Bos.  &  Pul.  447.  Welch  v.  Mandeville,  1  Wheat.  233 
and  5  ib.  277.  Littlefield  v.  Storey,  3  Johns.  425.  Pass  v.  McRae,  36  Miss. 
143.  Dunn  v.  Snell,  15  Mass.  481.  Riley  v.  Taber,  9  Gray,  373.  Gardner 
V.  Tennison,  2  Cranch  C  C.  Rep.  338. 

(rf)  Mosher  v.  Allen,  16  Mass.  451. 

(e)  See  Corderoy's  case,  1  Freeman,  312.  Fenner  v.  Meares,  2  W.  Bl. 
1269.  Surtees  v.  Hubbard,  4  Esp.  R.  204.  Crocker  v.  Whitney,  10  Mass. 
316.  Mowry  v.  Todd,  12  ib.  281.  Lamar  i;.  Manro,  10  Gill  &  Johns.  64. 
RoUison  V.  Hope,  18  Texas,  446.  Warren  v.  Wheeler,  21  Maine,  484. 
Clarke  v.  Thompson,  2  R.  I.  146.  Currier  v.  Hodgdon,  3  N.  Hamp.  82. 
Moar  V.  Wright,  1  Verm.  57.     Lang  v.  Fiske,  2  Fairf.  385. 


188  LAW   OF   CONTRACTS. 

Union,  an  assignment  of  bonds  or  other  contracts  enables  the 
assignee  to  sue  thereon  in  his  own  name.  Such  also  is  the 
law  of  Scotland ;  and  the  assignee  of  a  Scotch  bond  may 
maintain  assumpsit  in  the  courts  of  England,  upon  the  im- 
plied promise  arising  from  the  indorsement  and  assignment 
to  him.  (a)  By  a  statute  in  Ireland  a  judgment  by  confession 
may  be  assigned  ;  and  an  action  by  the  assignee  of  such  judg- 
ment may  be  maintained  in  his  own  name  in  the  English 
courts,  (b) 

By  statutes  in  England  certain  bonds  and  deeds  are  made 
assignable,  and  the  assignee  authorized  to  sue  thereon  in  his 
own  name,  to  wit,  bail  bonds  taken  by  sheriffs,  (c)  replevin 
bonds,  (d)  railway  bonds,  (e)  India  bonds,  (/)  and  admin- 
istration bonds,  (g-)  And  by  a  statute  in  New  York,  all  ac- 
tions at  law  are  required  to  be  brought  in  the  name  of  the  real 
party  in  interest.  (A)  Railway  bonds  issued  by  corporations, 
with  coupons  payable  to  bearer,  are  held  by  the  supreme 
court  of  the  United  States  to  be  negotiable  securities,  and  to 
pass  by  delivery.  If  coupons  are  drawn  so  that  they  can  be 
separated  from  the  bonds,  they  also  are  negotiable,  and  the 
owner  can  sue  thereon,  without  producing  the  bonds  or  being 
interested  in  them.  Thomson  v,  Lee  County,  3  Wallace,  327. 
And  see  21  Howard,  539,  575.     8  Gray,  575. 

An  assignment  to  the  king  empowers  him  to  sue  in  his 
own  name ;  and  assignment  by  him  empowers  the  assignee 

(a)  Innes  v.  Dunlop,  8  T.  R.  595. 

(6)   O'Callaghan  v.  Thomond,  3  Taunt.  82. 

(c)  PetersdorfF  on  Bail,  216.  Hurlstone  on  Bonds,  (Amer.  ed.)  65.  4 
Allen  (N.  B.)  182. 

(d)  Wilkinson  on  Replevin,  114,  115.  Thompson  v.  Farden,  1  Man.  & 
Grang.  535  and  1  Scott  N.  R.  275. 

(e)  Vertue  v.  East  Anglian  Railways  Co.  5  Exch.  280.  In  this  case  it 
was  held  that  an  action  on  the  bond,  after  it  was  assigned,  could  not  be  main- 
tained in  the  name  of  the  assignor. 

(/)  Hurlstone  on  Bonds,  (Amer.  ed.)  65. 

(g)  See  Young  v.  Hughes,  4  Hurlst.  &  Norm.  76. 

(A)  See  4  Duer,  78.  2  Kernan,  626.  18  Barb.  512.  But  the  same  rights 
of  action  that  were  assignable  before  that  statute  was  passed,  and  no  others, 
are  still  assignable.     By  Brown,  J.  18  Barb.  510. 


OF  THE   CONSIDERATION.  189 

to  sue  in  his  own  name,  (a)  Of  course,  no  promise  is  neces- 
sary to  charge  the  party.  The  consideration  is  the  original 
debt,  which  the  law  transfers  to  the  assignee,  and  which,  by 
legal  intendment,  the  party  promised  to  pay  to  him,  because 
such  is  the  party's  liability.  It  follows  that  a  promise  by  the 
original  debtor,  made  to  the  king's  assignor,  to  forbear  suing 
out  process,  is  without  consideration  and  void  ;  as  the  assignor 
has  no  power  to  retard  the  king's  suit,  (b) 

The  United  States  may  sue  in  their  own  name  on  a  claim 
assigned  to  the  government.  But  such  assignment  of  a  claim 
barred  by  the  statute  of  limitations  gives  it  no  new  va- 
lidity, (c) 

Pay  of  officers  in  the  British  army  and  navy  is  not  allowed 
to  be  assigned,  (d)  So  of  seamen's  wages,  by  a  statute  passed 
in  the  reign  of  George  the  Second. 

A  note  for  a  certain  sum  of  money,  "  which  may  be  dis- 
charged in  pork,"  has  been  held  to  be  assignable,  (e)  But  in 
Green  v.  Williston,  3  Kerr,  (N.  B.)  58,  it  was  held  that  the 
promisor  in  a  note  payable  in  lumber  was  not  bound  to  recog- 
nize an  assignment  thereof,  but  that  a  delivery  of  the  lumber 
to  the  assignee  would  discharge  the  note.  A  bond  or  note 
payable,  in  whole  or  in  part,  in  personal  services,  is  not  as- 
signable. (/) 

(a)  Bac.  Ab.  Prerogative,  E.  3. 

(6)  Bowes  V.  Paulet,  Cro.  Eliz.  653  and  Moore,  701. 

(c)  United  States  v.  Buford,  3  Peters,  12. 

(d)  2  Anstr.  533.     1  H.  Bl.  627.     3  T.  R.  682.     4  ib.  248. 

(e)  Thompson  v.  Armstrong,  Breese,  23.  See  Chipman  on  Contracts  for 
the  Payment  of  Specific  Articles,  as  to  the  place,  &c.,  of  payment. 

(/)  Bothick's  Adm'rs  v.  Purdy,  3  Missouri,  60.  Halbert  v.  Deering,  4 
Littell,  9.  Marcum  v.  Hereford,  8  Dana,  1.  Henry  v.  Hughes,  1  J.  J.  Marsh. 
453.  Ransom  v.  Jones,  1  Scammon,  291.  Davenport  v.  Gentry's  Adra'r,  9 
B.  Monroe,  429.  In  Haskell  v.  Blair,  3  Cush.  534,  a  written  promise  to  pay 
to  H.  "  or  bearer,"  on  demand  after  a  fixed  day,  a  certain  sum  in  work,  was 
held  to  be  assignable,  and  the  promisor  was  held  liable  to  the  assignee  (sueing 
in  the  assignor's  name)  who  demanded  payment  of  him,  and  he  made  no  ob- 
jection to  the  time  when,  nor  to  the  place  where,  he  was  required  to  do  the 
work,  nor  to  the  person  for  whom  it  was  required  to  be  done.  And  see  Cur- 
rier V.  Hodgdon,  3  N.  Hamp.  82.  Carleton  v.  Brooks,  14  ib.  149.  Gushee  v. 
Eddy,  11  Gray,  505. 


190  LAW   OP   CONTRACTS. 

It  seems  to  have  been  formerly  supposed  that  a  right  of  ac- 
tion for  a  tort  was  not  assignable.  It  was  so  said  by  Savage, 
C.  J.,  in  Gardner  v.  Adams,  12  Wend.  297.  And  no  assign- 
ment of  such  right  voluntarily  made  by  the  assignor  has  been 
found  in  the  English  books.  But  it  is  held  in  New  York, 
that  a  right  of  action  for  torts  that  would  by  the  English 
statutes  of  4  Edward  3d,  c.  7,  and  15  Edward  3d,  c.  5,  sur- 
vive to  executors  and  administrators,  (a)  may  be  voluntarily 
assigned  ;  as  conversion  of  goods,  trespass  for  taking  and  car- 
rying them  away,  &c.  (b) 

A  right  of  action  for  a  mere  personal  tort,  as  battery,  slan- 
der, seduction  of  a  wife  or  servant,  &c.,  is  not,  by  the  statutes 
of  Edward  the  Third,  made  to  survive,  and  cannot  be  legally 
assigned,  (c)  But  a  judgment  recovered  in  such  action  may 
be  assigned,  (d) 

In  Zabriskie  v.  Smith,  3  Kernan,  322,  it  was  held  that  a 
right  of  action  for  damages,  caused  to  a  firm  by  a  false  and 
fraudulent  representation  of  the  solvency  of  a  buyer  of  goods, 
was  not  assignable;  as  such  right  would  not  survive  to  the 
defrauded  party's  personal  representatives.  And  in  Thurman 
V.  Wells,  18  Barb.  500,  a  mere  right  of  action  for  an  unliqui- 
dated and  unrecognized  claim  against  common  carriers,  aris- 
ing ex  delicto,  was  held  not  to  be  assignable. 

(a)  See  Addison  on  Torts,  715,  1  Williams  on  Ex'rs,  (4th  Amer.  ed.)  669 
Sj-  seq.  and  1  Saund.  PI.  &  Ev.  (2d  ed.)  1113,  as  to  the  injuries  to  personal 
property  for  which  a  right  of  action  survives. 

(ft)  McKee  v.  Judd,  2  Kernan,  622.  Foy  v.  Troy  &  Boston  Railroad  Co. 
24  Barb.  382.  Purple  v.  Hudson  River  Railroad  Co.  4  Duer,  74.  Jackson 
V.  Losee,  4  Sandf.  Ch.  381.  People  v.  Tioga  Common  Pleas,  19  Wend.  73. 
Hall  V.  Robinson,  2  Comstock,  293.  Hudson  v.  Plets,  11  Paige,  183,  184. 
And  see  Weire  v.  City  of  Davenport,  11  Iowa,  52. 

(c)  Benson  v.  Flower,  W.  Jon.  215.  Howard  v.  Crowther,  8  Mees.  & 
Welsh.  601.  Comegys  v.  Vasse,  1  Peters,  213,  by  Storj',  J.  Whitaker  v. 
Gavit,  18  Conn.  527,  by  Ellsworth,  J.  North  v.  Turner,  9  Serg.  &  R.  249, 
by  Gibson,  C.  J.  Rogers  v.  Spence,  12  Clark  &  Fin.  720,  by  Lord  Campbell. 
Rice  V.  Stone,  1  Allen,  566.  In  tliis  last  case  it  was  held  that  the  Massa- 
chusetts statute  which  provides  that  a  right  of  action  for  assault  and  battery 
shall  survive  did  not  render  that  right  of  action  assignable. 

(d)  W.  Jon.  and  1  Allen,  supra. 


OF  THE   CONSIDERATION.  191 

A  right  of  action  for  a  merely  personal  tort  does  not  pass 
by  an  assignment  of  a  debtor's  effects,  under  a  bankrupt  or 
insolvent  law.  (a) 

Accepting  part  in  satisfaction  of  the  whole. 

A  promise  to  take  a  less  sum,  in  satisfaction  of  a  greater, 
where  the  greater  sum  is  fixed  and  liquidated,  or  is  ascertain- 
able by  merely  arithmetical  calculation,  is  without  considera- 
tion and  void  ;  and  after  taking  it  and  agreeing  to  discharge 
the  debtor,  the  creditor  may  recover  the  balance,  {b)  Aliter, 
if  a  sealed  acquittance  be  given,  in  satisfaction  of  the  whole, 
on  receiving  part,  or  if  the  debtor  pays  a  less  sum,  either  be- 
fore the  agreed  day  of  payment,  or  at  another  place,  and  the 
creditor  receives  it  in  full  satisfaction,  (c)  Or  if  the  creditor 
receives  some  specific  article,  in  satisfaction,  though  it  is  of 
much  less  value  than  the  whole  sum  due ;  (d)  or  if  he  receives 
a  negotiable  security  ;(e)  or  the  debtor's  note  indorsed  by  a 
third  person,  as  further  security ;  {/)  or  the  note  of  a  third  per- 
son, (g-)  or  an  accepted  draft  on  a  third  person,  (h)  Where 
a  judgment  was  recovered  for  over  $1700,  against  an  insol- 
vent debtor,  and  the  judgment  creditor  agreed  to  receive 
$500   on  the  judgment  and   $100  for  attorney's  fees,  which 

(a)  See  Spence  v.  Rogers,  11  Mees.  &  Welsh.  191,  affirmed  in  the  House 
of  Lords,  12  Clark  &  Fin.  700.  Sommer  v.  Wilt,  4  Serg.  &  R.  28.  Mann's 
Appeal,  18  Penn.  State  Rep.  249. 

(6)  Cumber  v.  Wane,  1  Strange,  426.  Heathcote  i\  Crookshanks,  2  T.  R. 
24.  Fitch  V.  Sutton,  5  East,  232.  Harrison  v.  Close,  2  Johns.  450.  Good- 
win V.  Follett,  25  Verm.  386.  Hall  v.  Constant,  2  Hall,  185.  Pearson  v. 
Thomason,  15  Alab.  700.  Harriman  v.  Harriman,  12  Gray,  341.  Rising  v. 
Patterson,  5  Whart.  319.  Daniels  v.  Hatch,  1  Zab.  391.  The  cases  of  com- 
promise, ante,  177,  were  all  of  unliquidated  and  unacknowledged  claims. 

(c)   Co.  Lit.  212  b.     Dalison,  49,  pi.  13.     Bowker  y.  Childs,  3  Allen,  434. 

(r/)  Littleton,  §  344.  Co.  Lit.  212  b.  Perkins,  §  749.  Pinnel's  case,  5 
Co.  117. 

(e)  Sibree  v.  Tripp,  15  Mees.  &  Welsh.  23,  qualifying  the  decision  in  Cum- 
ber V.  Wane,  1  Strange,  426. 

(/)  Boyd  V.  Hitchcock,  20  Johns.  76. 

(g)  Kellogg  V.  Richards,  14  Wend.  116.  Brooks  v.  White,  2  Met.  283. 
Smith  V.  Ballou,  1  R.  L  496. 

(Ji)  Reid  V.  Hibbard,  6  Wis.  1 76. 


192  LAW   OF   CONTRACTS. 

sums  were  paid  and  a  receipt  in  full  given  for  the  judgment,  it 
was  held  that  satisfaction  of  the  judgment  should  be  ordered 
to  be  entered,  (a)  "  There  must  be  some  consideration,"  said 
Lord  Ellenborough  (5  East,  232)  "  for  the  relinquishment  of 
the  residue ;  something  collateral,  to  show  a  possibility  of 
benefit  to  the  party  relinquishing  his  further  claim  ;  otherwise 
the  agreement  is  nudum  pactum.'"  And  as  the  strict  rule  of 
law  may  be  urged  in  violation  of  good  faith,  it  is  not  to  be  ex- 
tended beyond  its  precise  import;  and  whenever  the  technical 
reason  for  its  application  does  not  exist,  judges  have  been  dis- 
posed to  take  out  of  its  application  all  those  cases  where  there 
was  any  new  consideration,  or  any  collateral  benefit  received 
by  the  payee,  which  might  raise  a  technical  legal  considera- 
tion, although  it  was  quite  apparent  that  such  consideration 
was  far  less  than  the  amount  of  the  sum  due.  By  Dewey,  J 
2  Met.  285. 

By  statute  in  Maine,  no  action  can  now  be  maintained  on 
a  demand  which  has  been  settled  by  the  payment  of  any  sum 
of  money,  or  other  valuable  consideration,  however  small,  (b) 

If,  on  the  faith  of  a  creditor's  agreement  to  accept  a  part 
of  his  debt,  in  full  satisfaction,  a  third  person  is  induced  to 
become  surety  for  the  debtor,  on  the  ground  that  he  will  be 
discharged  on  easy  terms ;  or  other  creditors  are  induced  to 
relinquish  their  demands  on  the  debtor  ;  the  creditor  who  thus 
agrees  cannot  recover  the  balance,  as  it  would  be  a  fraud  on 
the  surety  or  other  creditors.  In  some  of  this  class  of  cases, 
the  plaintiff  failed  to  recover  the  residue  of  his  debt,  because 
his  agreement  had  induced  the  debtor  to  make  an  assign- 
ment of  all  his  property,  and  a  recovery  would  be  a  fraud  on 
him.  (c) 

(a)  Harper  v.  Graham,  20  Ohio,  105. 

(b)  Weymouth  v.  Babcock,  42  Maine,  42. 

(c)  On  this  whole  subject  see  1  Smith  Lead.  Cas.  (6th  Amer.  ed.)  550  §• 
seq.  the  note  to  the  case  of  Cumber  v.  Wane.  Steinraan  v.  Magnus,  11  East, 
390.  Butler  v.  Rhodes,  Peake,  238  and  1  Esp.  R.  236.  Reay  v.  White,  1 
Crompt.  &  Mecs.  748  and  3  Tyrw.  .'396.  Good  v.  Cheesman,  2  B.  &  Ad.  328 
Boyd  V.  Hind,  1  Ilurlst.  &  Norm.  946.  Watkinson  v.  Inglesby,  6  Johns.  386. 
Eaton  V.  Lincoln,  13  Mass.  424.  Bac.  Ab.  (Bouvicr's  ed.)  Accord  and  Sat- 
isfaction. 


OF   THE    CONSIDERATION.  193 

Executed  Consideration. 

There  is,  perhaps,  no  point  of  law,  which  students  more 
universally  regard  as  arbitrary  and  unreasonable,  as  they  find 
it  announced  in  the  books,  than  the  matter  of  executed  con- 
sideration. It  is  asserted,  as  if  it  were  elementary  doctrine,  that 
if  the  consideration  be  wholly  executed  and  past,  and  do  not  go 
along  with  the  contract,  it  will  not  support  a  promise,  unless 
the  consideration  were  executed  at  the  request  of  the  promisor  : 
Aliter,  of  a  consideration  executed  in  part  only,  (a)  The 
reason  of  this  rule  is  seldom  set  forth  with  the  proper  clear- 
ness. The  suggestion  in  a  note,  ante,  164,  as  to  the  positions 
laid  down  by  certain  writers  in  reference  to  pleading  and  the 
forms  of  action,  as  if  they  were  the  abstract  doctrines  of  the 
law,  is  specially  applicable  to  this  point.  And  in  the  outset 
it  may  be  well  to  say  that  this  rule  as  to  executed  considera- 
tion is  merely  a  rule  of  pleading,  and  is  susceptible  of  an  ex- 
position which  will  show  that  it  is  reasonable,  and  that  it  is 
also  a  necessary  part  of  the  system  of  enforcing  and  defend- 
ing the  rights  of  parties  in  the  action  of  assumpsit. 

In  the  case  of  Hunt  v.  Bate  (b)  the  declaration  averred  that 
the  defendant  promised  to  save  the  plaintiff  harmless,  in  con- 
sideration that  he  had  become  bail  for  the  defendant's  servant. 
Judgment  was  arrested.  So  where  the  declaration  alleged 
that  the  defendant  promised  to  pay  the  plaintiff  five  pounds, 
in  consideration  that  the  plaintiff /mc?  delivered  to  him  twenty 
sheep,  (c)  So  of  a  promise  by  a  lessor  to  give  a  new  lease, 
in  consideration  that  the  lessee  had  incurred  expense  in  de- 
fending his  title  under  the  old  lease,  (d)  So  of  a  promise 
to  lend  the  plaintiff  ten  pounds  upon  request,  in  considera- 
tion that  the  plantiff  had  formerly  lent  the  same  sum  to  the 

(a)  Doctor  &  Student,  c.  xxiv.  1  Rol.  Ab.  11.  Bac.  Ab.  Assumpsit,  D. 
1  McCord,  515.  1  Lil.  Ab.  299.  1  Dane  Ab.  119.  10  Pick.  500.  3  Met.  158. 
7  Cowen,  358.  2  Conn.  404.  1  Blackf.  247.  1  Greenl.  128.  11  Ad.  &  El. 
438,451. 

(b)  Dyer,  272,  a. 

(c)  Jeremy  v.  Goochman,  Cro.  Eliz.  442. 
(rf)  Moore  v.  Williams,  Moore,  220. 

13 


194  LAW    OF    CONTRACTS. 

defendant,  (a)  So  of  a  promise  to  repay  sixty  pounds,  in  con- 
sideration that  the  plaintiff  had  before  paid  that  sum  to  the 
defendant's  creditor  in  satisfaction  of  the  debt,  (b)  So  of 
promises  in  consideration  that  the  plaintiff  had  sold  and  de- 
livered goods,  lent  money,  &c.,  to  the  defendant,  or  had  done 
work  for  him,  or  had  sold  and  conveyed  a  farm  to  him.  (c) 
All  these  were  cases  within  the  first  part  of  the  rule  above 
mentioned,  that  is,  cases  where  the  consideration  was  wholly 
executed  and  past,  and  not  at  the  request  of  the  promisor. 

If,  however,  the  consideration  be  executed  at  the  promisor's 
request,  it  is  sufficient  to  support  a  promise.  This  was  sug- 
gested as  the  remedy  which  would  have  cured  the  defect  in 
the  case  of  Hunt  v.  Bate,  above  cited  from  Dyer,*  272,  a ;  and 
in  the  next  page  of  that  book  an  anonymous  case  is  reported, 
in  which  a  promise  to  pay  <£20  "in  consideration  that  the 
plaintiff,  at  the  special  instance  of  the  defendant,  had  taken  to 
wife  the  cousin  of  the  defendant,"  was  enforced  at  law,  "  al- 
though the  marriage  was  executed  and  past  before  the  under- 
taking and  promise."  These  cases  were  determined  in  10 
Eliz.  Seventeen  years  afterwards  (27  Eliz.)  the  question 
arose  in  the  very  case  of  becoming  bail  for  a  third  person  at 
the  defendant's  request,  and  was  decided  for  the  plaintiff,  (d) 
"  The  request  "  said  Periam,  J.,  "  is  a  great  help  in  the  case."(e) 
Afterwards,  it  was  settled  by  numerous  decisions,  that  in  all 
other  cases,  where  the  consideration  was  executed  and  past  at 
the  time  of  the  promise,  if  it  were  executed  (that  is,  if  the 
services,  &c.,  were  rendered)  at  the  promisor's  request,  it  was 
sufficient  to  support  the  promise  and  maintain  the  action.  (/) 

(a)  Dogget  V.  Vowell,  Moore,  643. 
(h)  Barker  v.  Halifax,  Cro.  Eliz.  741. 

(c)  Oliverson  v.  Wood,  3  Lev.  366.  Hayes  v.  Warren,  2  Strange,  933, 
W.  Kelynge,  117  and  2  Barnanl.  B.  R.  55,  71,  140.  Comstock  v.  Smith, 
7  Johns.  87.  Parker  v.  Crane,  6  Wend.  649.  Leland  v.  Douglass,  1  Wend. 
492.     Stanhop's  case,  Clayton,  65. 

(d)  Sydenham  &  Worlington's  case,  Godb.  31,  Cro.  Eliz.  42  and  2  Leon. 
224. 

(e)  Godb.  32. 

(/)  Hardres  v.  Prowd,  Style,  465,  Lampleigh  v.  Braithwate,  1  Brownl.  7, 
Moore,  8fi6  and  Hob.  105.  Bosden  v.  Thinn,  Cro.  Jae.  18  and  Yelv.'40. 
Townsend  v.  Hunt,  Cro.  Car.  408.  Contra,  Sandhill  v.  Jenny,  Dyer,  212  b. 
in  margin. 


OF   THE    CONSIDERATION.  195 

There  is  not  much  of  good  sense  or  of  equity  in  the  ab- 
stract doctrine  that  an  executed  consideration  will  not  support 
a  promise.  Wilmot,  J.,  (a)  said,  "  many  of  the  old  cases  are 
strange  and  absurd  ;  so  also  are  some  of  the  modern  ones, 
particularly  that  of  Hayes  v.  Warren."  He  also  said  that  the 
doctrine  "  has  been  melting  down  into  common  sense,  of  late 
times."  The  case  of  Hayes  v.  Warren  is  questioned  also  by 
Mr.  Lawes,  (b)  for  the  reason  stated  post.  199.  It  will  be 
found,  however,  upon  an  examination  of  the  history  of  the 
doctrine  in  question,  that  there  has  been  no  relaxation  of  it  • 
and  that  the  case  of  Hayes  v.  Warren  stands  on  the  same 
grounds  as  the  other  cases,  and  could  not  have  been  decided 
differently  without  violating  long  established  principles,  unless 
the  declaration,  as  Mr.  Lawes  supposed,  sufficiently  showed 
the  defendant's  request,  (c) 

It  is  one  of  the  elementary  principles  of  pleading,  in  the 
action  of  assumpsit,  that  the  declaration  must  state  a  valid 
consideration  for  the  promise  which  the  plaintiff  seeks  to 
enforce. 

In  most  of  the  cases  that  have  been  cited,  the  plaintiff 
failed  by  reason  of  his  bad  pleading.  His  real  case  was  meri- 
torious and  legal,  but  the  cause  stated  in  his  declaration  was 
without  consideration.  In  Hunt  v.  Bate,  there  was  in  fact 
no  consideration  which  the  law  regards.  The  plaintiff's  be- 
coming bail  was  a  transaction  inter  alios,  neither  beneficial  to 
the  defendant  nor  inconvenient  to  the  plaintiff,  at  the  instance 
of  the  defendant.  There  was,  therefore,  nothing  to  support 
the  promise.  Indeed,  the  court  that  decided  the  case  say, 
"  there  is  no  consideration  wherefore  the  defendant  should  be 
charged  for  the  debt  of  his  servant,  for  he  did  never  make  re- 
quest," &c.  The  case  was  decided,  not  on  the  ground  of  an 
executed  consideration,  but  of  no  consideration. 

(a)   3  Bur.  1671,1672. 

(&)  Lawes  PI.  in  Assunip.  (Amer.  ed.)  334,  335.     And  see  2  Binn.  592. 

(c)  The  declaration,  in  Hayes  v.  Warren,  as  appears  in  2  Barnard.  B.  R. 
140  and  W.  Kelynge,  120,  alleged  that  the  plaintiff  had  done  and  performed 
divers  works  and  labors  for  the  defendant,  who  afterwards  promised  to  pay 
for  them  as  much  as  they  were  worth ;  there  being  no  averment  that  the 
works  were  done  at  the  defendant's  request.  The  defendant  was  defaulted, 
but  judgment  was  arrested  on  his  motion. 


196  LAW    OP    CONTRACTS. 

The  other  cases  that  have  been  cited  rest  on  the  same 
ground.  Some  of  the  earliest  of  them  were  decided  on  the 
authority  of  Hunt  v.  Bate,  and  on  the  notion,  not  at  all  ex- 
plained, of  an  executed  consideration. 

Cases  mentioned  ante,  183,  184,  have  settled  the  doctrine 
that  a  voluntary  courtesy,  or  mere  gratuitous  service,  is  not  a 
consideration  that  will  support  an  implied  promise.  The  law 
is  the  same,  in  many  instances  at  least,  in  case  of  an  express 
promise,  (a) 

The  true  and  the  only  satisfactory  reason  for  regarding  as 
void  a  promise  on  an  executed  consideration,  when  there  was 
no  previous  request,  is,  that  it  does  not  appear  that  there  was 
any  legal  consideration  for  such  promise.  The  consideration 
may  have  been  a  gratuitous  service  or  voluntary  courtesy. 
In  declaring  on  a  promise  made  upon  such  consideration,  no 
valid  consideration  is  stated,  unless  a  previous  request  is  al- 
leged. But  if  the  consideration  is  executed  at  the  request  of 
the  promisor,  the  promise  "  is  coupled  to  the  consideration 
by  the  request,"  and  is  not  merely  a  naked  promise.  The 
previous  request  is  a  sufficient  consideration  for  the  subse- 
quent promise  ;  the  plaintiff  has  incurred  a  loss,  damage,  or 
inconvenience,  at  the  instance  of  the  defendant,  which,  as  has 
been  before  seen,  is  (with  reference  to  the  rules  of  pleading) 
one  of  the  requisites  of  a  consideration  for  a  promise,  (b) 
The  settled  forms  of  pleading  in  assumpsit  require,  for  this 
reason,  that  a  declaration  on  a  promise  made  upon  a  con- 
sideration wholly  executed  and  past  should  allege  that  the 
debt  was  incurred,  the  service  rendered,  &c.,  at  the  defendant's 
request.  A  count  for  money  had  and  received,  money  lent, 
and  for  goods  sold  and  delivered,  are  exceptions  to  this  rule.(c) 
"  An   executed    consideration,"  said   Baron    Maule,  5  Mees. 

(a)  3  Pick.  207.      7  Conn.  51.     4  Munf.  273. 

(h)  Lawes  PI.  in  Assump.  65,  66.  1  Saund.  264,  note  (1).  Hob.  106.  1 
Blackf.  247. 

(6-)  Lawes  PI.  in  Assump.  334.  1  Sauml.  264,  note  (1).  1  Man.  & 
Grang.  266,  note.  1  Dowl.  &  Lowndes,  984.  Patteson  &  Williams  note  (z) 
1  Saiind.  (5th  ed.)  264,  and  opinion  of  Bridgman,  C.  J.,  and  Page,  J.,  in  2 
Barnard.  B.  R.  71,  as  to  a  count  for  goods  sold  and  delivered. 


OF   THE   CONSIDERATION.  197 

&  Welsh.  249,    "  is  no  consideration  for  any  other    promise 
than  that  which  the  law  would  imply." 

The  ground  of  this  doctrine  of  executed  consideration,  as 
stated  in  Bacon's  Abridgment,  and  elsewhere,  is  this  :  "  It  is 
not  reasonable  that  one  man  should  do  another  a  kindness,  and 
then  charge  him  with  a  recompense.  This  would  be  obliging 
him  whether  he  would  or  not,  and  bringing  him  under  an  ob- 
ligation without  his  concurrence."  (a)  This  is  a  very  satisfac- 
tory reason  for  not  charging  a  party  on  an  implied  promise,  in 
most  cases  of  this  kind ;  but  it  does  not  seem,  at  first  sight,  to 
reach  the  case  of  an  express  promise  recognizing  the  services 
and  their  value  to  the  promisor,  nor  those  cases  where  there  is 
a  legal  and  moral  duty  antecedent  and  paramount  to  the  will 
of  the  party,  from  which  the  law  raises  a  promise  even  against 
his  protestations.  The  form  of  declaring  is,  however,  the 
same,  whether  an  express  or  an  implied  promise  is  relied  on ; 
and  it  will  presently  be  seen  that  a  previous  request  may  be 
implied  or  inferred  from  circumstances,  as  well  as  a  subse- 
quent promise.  There  are  cases  in  which  an  express  request 
is  necessary  to  support  the  action,  as  there  are  cases  in  which 
an  express  promise  must  be  shown.  But  as  the  summary 
forms  of  declaring  in  general  assumpsit  are  the  same  in  all 
cases,  and  as  it  does  not  necessarily  appear,  on  the  face  of  the 
declaration,  that  a  promise  on  an  executed  and  past  considera- 
tion is  legally  binding,  without  a  previous  request,  such  dec- 
larations are  held  to  be  ill.  {b)  In  declaring  on  a  contract 
upon  an  executory  consideration,  it  is  not  necessary  to  allege 
it  to  have  been  at  the  defendant's  request ;  because,  in  all 
cases  where  a  request  is  necessary,  it  is  necessarily  implied  : 
As  if  A.  promise  B.  to  pay  him  $1000  if  he  will  build  a  house, 
the  promise  implies  that  A.  requested  B.  to  build  it ;  and  so 
of  similar  cases,  (c) 

(a)  Bac.  Ab.  Assumpsit,  D.     1  Saund.  264,  note.    1  Caiiies,  585.  1  Leigh's 
Nisi  Prius,  36. 

(b)  See  Stokes  r.  Lewis,  1  T.  R.  20.     Naish  v.  Tatlook,  2   H.  Bl.  322.     3 
"Wooddeson,  142,  143. 

(c)  Lawes  PI.  in  Assump.  85.     See  tlie  different  forms  of  declaring,  in 
general  and  special  assumpsit,  stated  by  Mr.  Lawes  in  PI.  in  Assump.  1,  2. 


198  LAW   OF   CONTRACTS. 

In  Hicks  v.  Burhans  (a)  it  is  said,  that  "  if  a  promise  founded 
on  a  past  consideration  be  not  laid  to  have  been  on  request,  a 
request  may  be  implied."  And  in  Comstock  ik  Smith,  (b)  it 
is  said  that  it  does  not  seem  requisite,  in  every  case  of  executed 
consideration,  to  lay  a  request  in  the  declaration.  The  same 
remark  is  repeated  in  Doty  v.  Wilson,  (c)  These,  however,  are 
obiter  dicta,  and  are  questioned  in  the  notes  to  the  second  edi- 
tions of  1  Caines,  585,  and  7  Johns.  88. 

It  is  laid  down  expressly  by  Serjeant  Williams  (d)  that  a 
request  must  be  averred.  It  is  strongly  implied  in  what  is 
said  by  Kent,  J.,  1  Caines,  585,  and  is  regarded  as  essential 
by  the  authors  of  the  able  note  in  3  Bos.  &  Pul.  249,  and  in 
3  Morgan's  Vade  Mecum,  107,  122.  Besides ;  the  forms  of 
pleading  (which  Buller,  J.,  says  (e)  are  evidence  of  what  the 
law  is)  contain  this  allegation.  (/) 

In  Church  v.  Church,  cited  in  T.  Ray.  260,  and  in  Franklin 
V.  Bradell,  Hutton,  84,  and  perhaps  one  or  two  other  ancient 
cases,  this  allegation  was  not  deemed  indispensable  after  ver- 
dict ;  and  it  was  intimated  by  the  court,  in  Hayes  v.  War- 
ren, (g)  which  has  already  been  referred  to,  that  a  verdict 
might  have  cured  the  defect  in  that  case.  (//)  It  is  however 
to  be  observed,  that  in  several  of  the  earliest  cases  on  this  sub- 
ject, the  objection  was  raised  after  verdict,  and  was  sus- 
tained, (i)  There  are  cases  in  which  it  has  been  held  that  if 
the  plaintiff  declare  that  the  defendant,  being"  indebted  to  the 
plaintiff  (for  goods  delivered,  &c.)  in  consideration  thereof 
promised,  &c.,  it  is  sufficient,  without  alleging  a  request  of 
the  defendant ;  on  the  ground  that  the  "  being  indebted  "  im- 
plies that  the  consideration  was  executed  at  the  request  of  the 

(a)  10  Johns.  24.3.  (b)   1  Johns.  88. 

(c)   14  Johns.  382. 

Id)  1  Saund.  264,  note.     See  also  1  Greenl.  128.     6  Wend.  649. 

(e)  3  T.  R.  161. 

(/)  See  forms  of  declarations  in  actions  of  assumpsit  in  2  Chit.  PI.  (6th 
Amer.  ed.)  37  ^  seq. 

(g)  2  Strange,  933. 

(h)  In  Pennsylvania,  a  verdict  is  held  to  cure  this  defect.  Stoever  v.  Sto- 
ever,  9  Serg.  &  R.  434. 

(i)   Dyer,  272.     Cro.  Eiiz.  412,  741. 


OF   THE    CONSIDERATION.  199 

defendant ;  or  that  the  consideration  is  a  continuing  one,  and 
not  wholly  executed  and  past,  (a)  Mr.  Lawes  (b)  thinks  that 
the  present  summary  form  of  declaring,  in  most  of  the  counts 
in  indebitatus  assumpsit,  necessarily  implies  a  request,  or  an 
assent  to  the  debt  contracted ;  and  that  as  the  old  cases  were 
decided  before  this  form  was  adopted,  they  did  not  warrant 
the  decision  in  Hayes  v.  "Warren,  where  the  declaration  was  in 
the  modern  form.  Still  he  asserts  on  the  preceding  page,  that 
"  it  is  usual  and  proper  in  indebitatus  assumpsit  to  state  the 
cause  of  the  debt  as  having  taken  place  at  the  special  in- 
stance and  request  of  the  defendant."  And  in  page  65,  he 
asserts  the  necessity  of  alleging  a  request,  and  gives  the  rea- 
son already  stated,  namely,  otherwise  "  non  constat  that  it  was 
not  done  of  the  plaintiff's  own  accord,  and  without  the  de- 
fendant's order  or  desire,  in  which  case  it  is  no  good  consider- 
ation for  a  subsequent  promise." 

The  law  is  probably  thus :  The  allegation  of  "  being  in- 
debted "  is  substantially  good,  without  stating  a  request,  but 
not  technically  and  formally  correct ;  there  being  no  debt,  by 
legal  intendment,  unless  for  something  done  by  request.  In 
a  count  for  goods  sold  and  delivered,  or  for  money  lent,  it 
might  perhaps  be  said  that  a  sale  or  a  loan  necessarily  imports 
a  request;  but  the  precedents  all  contain  an  averment  of 
it.  (c)  In  a  count  on  an  insimul  computassent,  the  promise  is 
alleged  to  be  in  consideration  of  being  found  in  arrear  and  in- 
debted upon  an  accounting  with  the  plaintiff  of  and  concern- 
ing moneys  before  owing  and  due,  and  in  arrear  and  unpaid,  {d) 
"  The  stating  of  an  account  is  regarded  as  a  consideration 

(a)  Hod<Te  v.  Vavisor,  1  Rol.  R.  413  and  3  Bulst.  222.  Lawes  PI.  in  As- 
sump.  435,  440.     Barton  v.  Shirley,  1  Rol.  Ab.  12,  pi.  16. 

(h)  Pi.  in  Assump.  335.  But  it  does  not  appear  that  the  words,  "  being  in- 
debted" were  in  the  declaration  in  that  case. 

(c)  Stephen  on  PI.  (1st  Amer.  ed.)  47.  (9th  Amer.  ed.)  39.  1  Lil.  Ent. 
(5th  ed.)  29,  30.  See  Emery  v.  Fell,  2  T.  R.  30,  opinion  of  BuUer,  J.  In 
Barton  v.  Shirley,  1  Rol.  Ab.  12,  pi.  16,  a  count  for  money  lent  and  accommo- 
dated was  supported,  though  no  request  was  alleged.  The  form  was,  "  being 
indebted,"  &c. 

(rf)   2  Chit.  PI.  (6th  Amer.  ed.)  89,  90. 


200  LAW    OF    CONTRACTS. 

for  the  promise,  and  is  in  tlie  nature  of  a  new  promise."  (a) 
There  is  a  practice  in  Massachusetts,  and  probably  in  some 
of  the  adjoining  states,  of  declaring,  in  indebitatus  assumpsit, 
that  the  defendant,  being  indebted,  &c.,  according  to  the  ac- 
count annexed  to  the  writ,  in  consideration  thereof,  promised, 
&c. ;  no  request  being  alleged,  (b)  This  seems  to  be  sanc- 
tioned by  long  use.  (c) 

Though,  for  the  reasons  already  given,  a  request  must  be 
averred,  in  declaring  on  a  promise  upon  an  executed  consider- 
ation, or  some  terms  used  which  are  of  equivalent  legal  im- 
port ;  yet  in  many  cases  it  is  not  necessary  to  prove  an  express 
request.  A  request  is  frequently  implied  from  the  circum- 
stances of  the  transaction.  Where  the  party  derives  a  benefit 
from  the  consideration,  it  is  often  tantamount  to  a  request ; 
and  a  jury  will  infer  one,  for  the  purpose  of  enforcing  a  mer- 
itorious legal  claim,  (^)  The  same  doctrine  is  applied  in 
cases  of  mere  legal  duty  which  the  law  enforces  through  the 
medium  of  a  suit  on  an  alleged  promise,  without  regard  to  the 
will  of  the  party  ;  as  for  the  support  of  a  wife  wrongfully 
discarded  by  a  husband,  &c.  A  previous  request  (as  well  as 
a  promise)  is  here  inferred  by  a  jury,  directly  contrary  to  the 
fact,  on  the  ground  of  legal  obligation  only.  The  case  of 
Jenkins  v.  Tucker  (e)  was  decided  on  this  ground,  where  the 
expenses  of  the  funeral  of  the  defendant's  wife,  incurred  and 
paid  by  her  father,  were  recovered  of  the  defendant,  who  was 
out  of  the  country  at  the  time  of  her  death.  (/)     So  of  the 

(a)  By  Spencer,  J.,  1  Johns.  36.  See  also  2  T.  R.  483,  note,  by  Buller,  J., 
Regula  Placitandi,  (2d  ed.)  11,  12.  2  Conn.  415,  416.  BuUen  &  Leake's 
Precedents,  29. 

(6)  Rider  v.  Robbins,  1 3  Mass.  284. 

(c)  In  Sheffield  v.  Rise,  Moore,  36  7,  "  in  consideration  that  the  plaintiff  had 
submitted  to  the  arbitrament  of  J.  S.  the  defendant  ar/ <unc  et  ibidem  assump- 
sit "  was  held  a  good  declaration,  on  demurrer,  as  the  words  must  be  under- 
stood to  allege  a  promise  at  the  time  of  the  submission. 

(c/)  1  Saund.  264,  note.  Oatfield  v.  Waring,  14  Johns.  192.  Hatch  v. 
Purcell,  1  Foster,  544.     Wilson  v.  Edmonds,  4  ib.  546. 

(e)  1  H.  Bl.  90. 

(/)   See  also  Dyer,  272,  b.  in  marc/in,  note  b.     T.  Ray.  260. 


OF   THE   CONSIDERATION.  201 

case  of  Tugwell  v.  Heyrnan,  (a)  where  executors,  who  neg- 
lected to  give  orders  for  the  funeral  of  the  testator,  were  held 
liable  to  the  person  who  furnished  it. 

In  a  majority  of  the  cases  where  the  plaintiff  has  failed  for 
want  of  an  averment  of  previous  request,  the  jury,  under  the 
direction  of  the  court,  would  have  inferred  a  requei^t,  from  the 
circumstances  of  the  case,  if  it  had  been  alleged  in  the  dec- 
laration. In  some  of  these  cases,  they  found  a  verdict  for  the 
plaintiff,  though  no  request  was  alleged. 

The  whole  amount,  then,  of  this  doctrine  of  executed  con- 
sideration is  simply  this  ;  that  one  man  cannot  make  another 
his  debtor  without  his  assent,  expressly  given  or  implied  by 
law;  and  that  the  forms  of  pleading  are  such,  that  the  mere 
statement  of  a  promise  on  such  a  consideration  does  not  show 
that  there  is  any  consideration  for  it,  except  a  voluntary  cour- 
tesy, which  will  not  uphold  an  assumpsit. 

If  a  consideration  be  "  executed  in  part  only,"  it  will  sup- 
port a  promise.  Modern  writers  call  this  a  "  continuing  con- 
sideration." The  case  of  Cotton  v.  Wescott  (/>)  may  be  taken 
to  illustrate  this  doctrine.  The  plaintiff  declared  that  the  de- 
fendant  married  a  maid  who  sojourned  in  the  plaintiff's  house, 
and  "  did  then  desire  the  plaintiff  that  his  wife  might  still 
continue  in  the  house  a  year  longer,  to  which  the  plaintiff 
agreed ;  and  afterwards,  about  the  middle  of  the  year  the 
defendant  promised,  in  consideration  that  the  plaintiff  would 
suffer  the  wife  to  continue  in  the  house  for  the  whole  of  the 
year,  he  would  pay  the  plaintiff  for  the  whole  year,  as  well 
the  past  as  the  future."  This,  as  alleged  in  pleading,  is  a 
clear  case  of  an  executory  consideration.  And  if  it  had  been 
an  executed  one,  a  previous  request  is  alleged.  But  if  it  had 
been  alleged  that  the  defendant,  in  consideration  that  the 
plaintiff  had  permitted  the  wife  to  be  in  his  house  for  six 
months,  promised  to  pay  therefor  and  for  her  subsequent  resi- 
dence there  for  six  subsequent  months,  at  the  defendant's  re- 
quest, a  good  consideration  would  have  appeared,  namely,  one 

(a)  3  Campb.  298.     See  ante,  144. 

(i)  3  Bulst.  187  and  1  Rol.  Rep.  381.  See  also  1  Lil.  Ab.  114.  3  Woodde- 
son,  144.     Merriwether's  case,  Clayton,  43. 


202  LAW   OF   CONTRACTS. 

executed  in  part  only,  though  that  part  was  not  at  the  request 
of  the  defendant. 

In  Pearle  v.  Unger  (a)  the  plaintiff  declared  that  the  de- 
fendant, in  consideration  that  the  plaintiff  had  occupied  his 
land,  and  paid  him  rent  while  he  occupied  it,  promised  to  save 
the  plaintiff  harmless  during  the  term,  as  well  for  the  years 
past  as  to  come,  and  aEeged  a  distress  of  his  cattle  before  the 
promise.  The  defendant  was  held  liable,  on  the  ground  that 
as  the  defendant  had  paid  and  was  to  pay  rent,  there  was  a 
good  consideration  for  the  promise.  Anderson,  J.,  in  Godb. 
31,  said  that  although  where  the  contract  is  determined,  a 
promise  is  void,  yet  it  is  "  otherwise  upon  a  consideration  of 
marriage,  for  that  is  always  a  present  consideration,  and  al- 
ways a  consideration,  because  the  party  is  always  married." 
"Walmsley,  J.,  in  Cro.  Eliz.  741,  said,  "  an  assumpsit  in  con- 
sideration that  you  had  married  my  daughter,  to  give  unto 
you  £40  was  good  ;  for  the  affection  and  consideration  al- 
ways continue."  These  are  dicta  only ;  but  the  case  of  Marsh 
V.  Kavenford  (b)  was  adjudged  on  the  same  principle. 

There  are  cases  upon  consideration  executed  in  part  only 
that  are  not  very  intelligible.  The  doctrine  seems  sometimes 
to  have  been  misapplied,  or  at  least  greatly  strained,  for  the 
purpose  of  maintaining  an  apparently  meritorious  action.  It  is 
not  possible  to  ascertain,  in  every  instance,  what  form  of  dec- 
laration was  adopted.  In  some  cases,  the  consideration  seems 
to  have  been  stated  as  wholly  executed,  but  it  further  appeared 
from  the  facts  alleged,  or  from  necessary  inference  from  them, 
that  the  whole  benefit  of  the  contract  had  not  been  enjoyed 
by  the  promisor,  which  circumstance  was  regarded  as  suffi- 
cient to  take  the  case  out  of  the  rule  applied  to  considerations 
wholly  executed  and  past.  In  the  summary  form  of  declar- 
ing in  indebitatus  assumpsit,  in  use  at  this  day,  such  cases 
cannot  arise.  The  record  would  not  furnish  the  court  with  the 
means  of  ascertaining  that  the  consideration  was  executed  in 
part  only.  A  special  declaration  would  be  necessary,  in  order 
to  enforce  a  promise  in  such  case,  (c) 

(a)  Cro.  Eliz.  94  and  1  Leon.  102.     Sec  also  Jones  v.  Clarke,  2  Bulst.  73. 

(b)  Cro.  Eliz.  .59  and  2  Leon.  IJl. 

(c)  See  cases  on  this  point  collected  in  Com.  Dig.  Assumpsit,  B.  12.     Bac. 


OP  THE   CONSIDERATION.  203 

As  the  distinction  between  executed  and  executory  con- 
siderations is  a  matter  of  pleading,  and  respects  only  the 
modes  of  averment  in  a  declaration,  the  rule  seems  to  be  this, 
namely,  if  the  consideration  appears  on  the  declaration  to  be  a 
continuing  consideration,  it  is  substantially  good,  though  a 
request  of  the  party  be  not  alleged  ;  but  if  the  consideration 
appears  to  be  wholly  executed  and  past  (that  is,  if  there  is  no 
continuing  consideration,  nor  averment  that  the  party  is  at 
present  indebted)  an  averment  of  a  request  is  indispensable ; 
and  if  the  consideration  is  executory,  request  and  perform- 
ance must  both  be  alleged. 

This,  however,  more  properly  belongs  to  the  subject  of 
pleading,  and  has  been  mentioned  here  only  for  the  purpose  of 
explaining  the  doctrine  of  executed  consideration. 

As  there  will  probably  be  no  occasion  to  advert  hereafter  to 
the  fictions  adopted  in  setting  forth  the  plaintiff's  claim  in 
declarations  in  the  action  of  assumpsit,  it  may  not  be  amiss 
to  present,  in  this  place,  a  succinct  view  of  those  fictions,  and 
of  the  reasons  on  which  they  are  founded. 

The  usual  action  on  a  simple  contract,  in  old  times,  was 
debt.  The  declaration,  in  that  action,  averred  in  substance 
that  the  defendant  owed  the  plaintiff  and  thereupon  an  ac- 
tion had  accrued,  &c.  No  promise  was  alleged  ;  for  no  prom- 
ise was  necessary.     But  the   defendant  was   allowed  to  wage 

Ab.  Assumpsit,  D.  1  Powell  on  Con.  349  S^'  -"^Q-  Warcop  v.  Morse,  Cro. 
Eliz.  138.  It  naay  be  worthy  of  notice,  that  Chief  Baron  Comyn:?,  in  his  Di- 
gest, («6i  sup.)  has  placed  under  the  head  of  "  Consideration  executed  in 
part,"  not  only  the  class  of  cases  above  referred  to,  but  also  those  in  which 
the  consideration  is  alleged  to  be  that  the  promisor  had  accounted  and  was 
found  in  arrear.  The  cases  in  which  the  consideration  is  the  "being  in- 
debted," would  seem,  on  the  same  principle,  to  fall  into  this  class  ;  and  ac- 
cordingly Comyn  and  Chitty  place  the  case  of  Hodge  i'.  Vavisor  (above 
cited)  under  this  head.  1  Comyn  on  Con.  (1st  ed.)  25.  Chit,  on  Con.  (1st 
Amer.  ed.)  17,  (10th  Araer.  ed.)  61.  It  is  not  easy,  perhaps,  to  understand 
the  reason  of  Chief  Baron  Comyns's  arrangement,  unless  by  "  iu  part"  he 
meant  cases  where  the  original  consideration  was  executed,  but  there  is  a  still 
continuing  consideration  for  a  promise,  and  so  not  wholly  executed,  in  the 
sense  generally  attached  to  the  words  fuiictu.t  officio. 


204  LAW   OF   CONTRACTS. 

his  law.  To  avoid  this  wager  of  law,  a  new  form  of  action 
was  devised,  to  wit,  the  action  of  assumpsit,  (a)  in  which  a 
promise  of  the  defendant  was  alleged,  and  was  indispensable. 
A  declaration,  which  did  not  aver  such  promise,  was  insuffi- 
cient even  after  verdict;  and  the  law  is  the  same  at  this  day. 
The  promise  declared  on  is  always  taken  to  be  express.  In 
pleading,  there  is  no  such  thing  as  an  implied  promise.  But 
as  no  new  rule  of  evidence  was  required  in  order  to  support 
the  new  action  of  assumpsit,  it  being  necessary  only  to  prove 
a  debt,  as  was  necessary  when  the  action  was  debt,  the  ficti- 
tious doctrine  of  an  implied  promise  was  introduced  ;  and  for 
the  sake  of  legal  conformity,  it  was  held,  when  the  defendant's 
legal  liability  was  proved,  that  the  law  presumed  that  he  had 
promised  to  do  what  the  law  made  him  liable  to  do. 

As  no  gratuitous  promise  binds  the  promisor,  (a  considera- 
tion being  necessary  to  the  validity  of  a  simple  contract,)  and 
as  a  promise  on  an  executed  consideration  does  not  show  that 
it  was  not  gratuitous,  unless  it  be  averred  either  in  express  or 
equivalent  terms,  to  have  been  executed  at  the  request  of  the 
promisor,  it  has  always  been  held  necessary  to  allege  such 
request  in  the  declaration.  But  here  again  no  new  rule  of 
evidence  was  required  in  order  to  support  the  action.  The 
defendant's  request  was  therefore  held  to  be  implied  in  those 
cases  where  he  was  legally  liable  to  the  plaintiff  as  he  would 
have  been  in  the  action  of  debt. 

A  single  example  will  illustrate  these  two  fictions.  A 
husband  is  bound  by  law  to  support  his  wife ;  and  if  he 
wrongfully  discard  her,  any  person  may  fuinish  support  to 
her,  and  recover  pay  therefor  of  the  husband.  In  the  action 
of  debt,  there  would  be  no  necessity  to  allege  a  promise  in 
such  case.  But  the  husband  might  wage  his  law,  and  de- 
fraud the  plaintiff.  In  the  action  of  assumpsit,  the  furnishing 
of  the  supplies  must  be  alleged  to  have  been  by  the  plaintiff 
at  the  husband's  request,  and  a  promise  of  the  husband  to  pay 
must  also  be  alleged.  But  proof  of  the  actual  facts  supports 
both  these  allegations.     The  husband,  being  in  law  liable  to 

(a)  Gillwrt  on  Debt,  364.  Gould  PI.  c.  iii.  §  19.  Comyn  on  Con.  part  iv. 
cliaj).  iii. 


OF   THE    CONSIDERATION.  205 

pay,  is  held  to  have  (impliedly)  made  both  the  request  and  the 
promise.  In  this  instance,  the  legal  maxim  is  well  supported, 
injictione  juris  subsistit  cequitas. 

In  other  instances,  the  request  only,  or  the  promise  only  is 
implied  by  law,  according  to  the  exigence. 

Consideration  arising  from  third  persons. 

The  position  is  often  found  in  the  books,  that  where  a  promise 
is  made  to  one  for  the  benefit  of  another,  he  for  whose  benefit 
it  is  made  may  bring  an  action  for  the  breach  of  it ;  and  Com. 
Dig.  Action  upon  the  case  upon  Assumpsit,  E.  a.  is  repeatedly 
referred  to,  in  this  country,  in  support  of  that  position.  It  will 
be  found,  however,  that  the  decisions  cited  by  Comyns  [a)  have 
ceased  to  be  law  in  England.  Thus,  where  H.  was  indebted  to 
the  plaintiff,  and  the  defendant  promised  to  pay  H.'s  debt  to 
the  plaintiff,  if  H.  would  assign  his  interest  in  a  house  to  the 
defendant,  and  he  assigned  accordingly,  (or  offered  to  assign, 
which  was  tantamount  in  law,)  yet  it  was  held  that  the  plaintiff 
could  not  recover  on  the  promise,  because  he  was  a  stranger  to 
the  consideration,  {h)  It  had  previously  been  decided,  on  similar 
ground,  that  the  plaintiff  could  not  recover  in  a  case  where  P. 
was  indebted  to  him  and  also  to  the  defendant,  and  a  stranger 
was  indebted  to  P.,  and  the  defendant  promised  to  pay  P.'s  debt 
to  the  plaintiff,  if  P.  would  allow  him  (the  defendant)  to  sue 
the  stranger  ;  although  the  defendant  did  sue  the  stranger  and 
recover  the  debt,  (c)  So  where  a  declaration  alleged  that 
W.  owed  the  plaintiff  <£  15,  and  that  in  consideration  thereof, 
and  that  W.,  at  the  defendant's  request,  had  promised  the  de- 
fendant to  work  for  him  and  leave  the  amount  of  his  wages 
in  the  defendant's  hands,  the  defendant  promised  to  pay  the 
plaintiff  the  said  sum  of  Xlo,  and  the  declaration  also  averred 
that  W.  performed  his  part  of  the  agreement,  it  was  held  that 
the  action    could  not  be   maintained,   as  the   plaintiff  was  a 

(a)  Bafeild  o.  Collard,  Aleyn,  1.  Dutton  v.  Poole,  1  Vent.  318,  2  Lev. 
211  and  T.  Jon.  102.  Sadler  v.  Paine,  Savile,  23.  Oldham  v.  Bateman,  1 
Rol.  Ab.  31,  pi.  8. 

(V)  Crow  V.  Rogers,  1  Strange,  592. 

(c)  Bourne  v.  Mason,  1  Vent.  6  and  2  Keble,  454,  457,  527, 


206  LAW   OP    CONTRACTS. 

stranger  to  the  consideration,  and  tiie  case  must  be  governed 
by  that  of  Crow  v.  Rogers,  {a) 

There  are,  however,  many  cases  of  simple  contracts  in  which 
it  has  been  decided,  that  where  a  person  made  a  promise  to  an- 
other, for  the  benefit  of  a  third,  the  third  might  maintain  an  ac- 
tion upon  it,  though  the  consideration  did  not  move  from  him. 
But  this  was  never  allowed  in  cases  of  sealed  contracts  inter 
partes.  In  those,  the  action  must  be  brought  by  the  obligee 
or  covenantee,  though  the  contract  be  to  pay,  &c.,  a  third  per- 
son, (b)  Courts  of  chancery  formerly  compelled  the  obligee, 
&c.,  to  sue  at  law,  if  necessary  for  the  benefit  of  the  party  in 
interest,  and  at  his  promotion  ;  (c)  but  the  party  in  interest,  at 
this  day,  may  himself  sue  in  chancery  on  such  contract,  (d) 

As  to  a  simple  contract,  one  of  the  earliest  cases  in  which 
the  party  for  whose  benefit  a  promise  was  made  maintained 
an  action  thereon,  is  Sadler  v.  Paine,  Savile,  23,  where  the 
plaintiff  had  conveyed  land  to  the  defendant,  who  afterwards, 
on  a  valid  consideration,  promised  D.  (a  kinswoman  of  the 
plaintiff,  whom  he  employed  to  negotiate  the  contract)  to  re- 
convey  the  land  to  the  plaintiff.  It  was  held  that  the  action  was 
rightly  brought  by  the  plaintiff  for  a  breach  of  this  contract. 
The  promise,  however,  was  regarded  by  Barons  Shute  and 
Manwood,  as  made  to  the  plaintiff  himself,  on  the  ground,  in 
part  at  least,  that  D.  was  his  agent  previously  authorized.  So 
in  Legat's  case.  Latch,  206,  an  action  was  sustained  on  a 
promise  made,  as  was  alleged  in  the  declaration,  "  to  the  plain- 
tiff's attorney,  in  behalf  of  the  plaintiff."  These  cases  were 
probably  decided  on  the  ground  that  the  promisee  in  each  was 
the  agent  of  the  plaintiff,  and  that  the  promise,  in  legal  effect, 
was  made  to  (the  principal)  the  plaintiff. 

(a)  Pric'>  V.  Easton,  4  B.  &  Ad.  433  and  1  Nev.  &  Man.  303.  And  see 
Williams  on  Pleading,  45. 

{b)  Scudamore  v.  Vandenstene,  2  Tnst.  673.  Rolls  v.  Yate,  Yelv.  177  and 
1  Bulst.  25.  Offly  V.  Warde,  1  Lev.  235.  Sandford  v.  Sandford,  2  Day,  559. 
Sanders  v.  Filley,  12  Pick.  554.  Hinkley  v.  Fowler,  15  Maine,  285.  John- 
son V.  Foster,  12  Met.  167.     Northampton  v.  Elwell,  4  Gray,  81. 

(c)   Gary,  20. 

(fl)  Ward  r.  Lewis,  4  Pick.  523.     Crocker  v.  Higgins,  7  Conn.  342. 


OP   THE   CONSIDERATION.  207 

Mr.  Hammond,  in  his  Treatise  on  Parties  to  Actions,  7  Sf 
seq.,  supposed  that  the  only  ground  on  which  the  decisions  on 
this  point  can  stand,  is,  that  a  promise  to  A.  for  the  benefit  of 
B.  is  made  to  A.  as  the  agent  of  B.,  and  thus  the  consideration 
moves  from  B.,  and  that  the  action  should  therefore  be  brought 
in  his  name ;  and  that  all  the  cases,  (hereafter  to  be  cited) 
which  do  not  conform  to  this  view  of  the  doctrine,  are  at  vari- 
ance with  the  original  principle  of  law,  that  the  party  giving 
the  consideration  is  the  only  person  privy  to  a  simple  contract ; 
or,  in  other  words,  that  the  legal  interest  in  such  contract  re- 
sides only  with  the  party  from  whom  the  consideration  moves. 

In  the  case  of  Bourne  v.  Mason,  1  Vent.  6,  7,  the  counsel 
for  the  plaintiff  cited  a  case,  in  which  a  promise  to  a  physician 
that  if  he  did  a  certain  cure,  the  defendant  would  give  him  a 
certain  sum,  and  also  another  sum  to  his  daughter  ;  and  it  was 
held  that  the  daughter  might  maintain  an  action  for  the  sum 
promised  to  her.  To  which  it  is  there  said  the  court  agreed  ; 
"  for  the  nearness  of  the  relation  gives  the  daughter  the  benefit 
of  the  consideration  performed  by  her  father."  Nearness  of 
relation,  as  between  parent  and  child,  was  also  mentioned  by 
the  court  in  Button  v.  Poole,  2  Lev.  211,  212,  and  1  Vent. 
333,  as  giving  the  child  a  right  of  action  on  a  promise  made 
to  a  father  for  the  child's  benefit.  And  Shaw,  C.  J.,  in  2  Met. 
402,  said  that  this  relation  might  have  had  some  influence  in 
the  decision  of  the  case  of  Felton  v.  Dickinson,  10  Mass.  287. 
But  there  were  several  cases,  prior  to  that  of  Bourne  v.  Mason, 
in  which  a  child  maintained  an  action  on  a  promise  for  his 
benefit,  made  to  the  father,  (a)  or  a  nephew  on  a  promise, 
made  for  his  benefit,  to  an  uncle,  {h)  yet  nearness  of  relation 
was  not  mentioned  as  a  reason  for  such  decisions,  (t)  And  in 
Tweddle  v.  Atkinson,  1  Best  &  Smith,  393,  it  was  held  that 
nearness  of  relation,  as  between  father  and  son,  did  not  au- 
thorize a  suit  by  the  son,  on  a  promise  made   for   his   benefit. 

(a)  Levet  v.  Hawes,  Cro.  Eliz.  619,  652.  Pine  v.  Norish,  cited  in  T.  Jon. 
103. 

(6)   Oldham  v.  Bateman,  1  Rol.  Ab.  31,  pi.  8. 

(c)  Thomas's  case,  Style,  461.  Bell  v.  Chaplain,  Hardr.  321.  Provender 
V.  Wood,  Hetley,  30.     Hadves  v.  Levit,  ib.  176. 


208  LAW   OF   CONTRACTS. 

Wightman,  J.,  there  said,  "  it  is  now  established  that  no 
stranger  to  the  consideration  can  take  advantage  of  a  con- 
tract, although  made  for  his  advantage." 

The  leading  English  case  on  this  subject  is  Button  v. 
Poole,  (a)  where  the  defendant  promised  a  father,  who  was 
about  to  fell  timber  for  the  purpose  of  raising  a  portion  for  his 
daughter,  that  if  he  would  forbear  to  fell  it,  he  (the  defen- 
dant) would  pay  the  daughter  XIOOO.  The  daughter  main- 
tained an  action  on  this  promise.  And,  as  already  seen,  that 
was  not  the  first  like  adjudication  of  this  point,  though  it  was 
the  first  in  which  the  point  appears  to  have  been  fully  dis- 
cussed in  argument.  But  since  the  cases  of  Price  v.  Easton 
and  of  Tweddle  v.  Atkinson,  above  cited,  were  decided,  it  seems 
that  it  must  be  understood  that  the  case  of  Dutton  v.  Poole, 
and  all  like  decisions  are  no  longer  law  in  England,  and  that 
the  rule  is  there  now  settled,  that  no  one  can  maintain  an  ac- 
tion upon  a  promise,  unless  the  consideration  thereof  moved 
from  him,  except  in  certain  cases  of  actions  for  money  had 
and  received,  now  to  be  mentioned. 

Where  A.,  the  debtor  of  B.,  sent  money  to  C,  and  after- 
wards informed  him  that  it  was  intended  to  be  paid  to  B.,  and 
C.  promised  so  to  pay  it,  and  this  was  communicated  to  B.,  it 
was  held  that  on  C.'s  failure  so  to  pay,  B.  might  maintain 
an  action  against  him  for  money  had  and  received,  (b) 
Patteson,  J.,  said,  the  rule  of  law  required  a  consideration 
moving  from  the  plaintiff  in  all  cases,  "  though  in  an  action 
for  money  had  and  received  a  direct  consideration  from  the 
plaintiff  is  seldom  shown."  The  English  law  on  this  subject 
is  stated,  in  Addison  on  Con.  (5th  ed.)  633,  634,  to  be  thus  : 
"  The  mere  circumstance  of  money  having  been  paid  by  a 
principal  to  his  agent,  with  directions  to  pay  it  to  a  third  per- 
son, imposes  no  liability  upon  the  agent  to  such  third  person, 
unless  there  is  an  express  or  implied  assent  on  the  part  of  the 

(a)  1  Vent.  318,  332,  T.  Ray.  302,  2  Lev.  210,  3  Keble,  786,  814,  830,  836, 
T.  Jon.  102,  and  1  Freeman,  (2d  ed.)  471  and  note. 

(b)  Lilly  r.  Hays,  5  Ad.  &  El.  548,  2  Har.  &  Woll.  338  and  1  Nev.  &  P. 
26.  And  see  Walker  v.  Rostron,  9  Mees.  &  Welsh.  411.  Noble  v.  National 
Discount  Co.,  5  Ilurlst.  &  Norm.  225. 


OF  THE    CONSIDERATION.  209 

agent  to  pay  the  money  according  to  the  directions  he  has 
received.  The  mere  receipt  of  the  money  by  the  agent  is  no 
evidence  of  an  implied  assent  to  apply  it  to  the  purpose  for 
which  it  was  professedly  remitted  to  him.  He  holds  the 
money  for  the  use  of  the  remitter;  the  privity  of  contract 
is  between  him  and  his  principal,  and  not  between  the  agent 
and  such  third  party,  until  by  some  act  done,  or  by  some  en- 
gagement entered  into  with  the  person  who  is  the  object  of 
the  remittance,  the  agent  has  consented  to  appropriate  the 
money  to  his  use."  And  on  page  951,  it  is  said,  that  "  in  all 
cases  where  money  is  sent  to  one  person  to  be  paid  by  him  to 
another,  to  enable  the  person  who  is  the  object  of  the  remit- 
tance to  maintain  an  action  against  the  remittee  to  recover  the 
amount  transmitted  to  him,  there  must  be  an  express  promise 
or  assent  on  the  part  of  the  latter  to  pay  over  the  money  to 
the  former,  or  hold  it  for  his  use." 

Though  this  English  rule  has  been  adopted  and  applied  by 
the  supreme  court  of  Georgia,  (a)  yet  a  different  rule  has  been 
repeatedly  applied  by  other  courts  in  this  country.  It  has 
been  held  that  when  a  principal  puts  money  or  property  into 
an  agent's  hands,  to  be  appropriated  for  a  third  person's  bene- 
fit, and  the  agent  thereupon  promises  the  principal  so  to  appro- 
priate it,  the  third  person  may  maintain  an  action  against  the 
agent,  without  any  previous  communication  with  him.  (b)  It 
has  also  been  held  that  where  money  was  remitted  to  an 
agent  to  be  paid  by  him  to  a  third  person,  the  agent  was 
answerable  to  such  person,  in   an  action  for  money  had  and 

(a)  Trustees  of   Howard    College  v.  Pace,   15  Georgia,  486.      See  also 
Ephraims  v.  Murdock,  7  Blackf.  10. 

(b)  By  Shaw,   C.  J.,   2  Met.   402.     TVeston  v.  Barker,   12   Johns.   276, 

Spencer,  J.,  dissenting.      Ellwood  v    Monk,  5  Wend.   235.     Delaware  and 

Hudson  Canal  Co.  v.  Westchester  County  Bank,  4  Denio,  97.     Lawrence  v. 

Fox,  20  N.  Y.  Rep.  268.      Fleming  i'.  Alter,  7  Serg.   &   R.  295.     Keller  v. 

Rhoads,  39  Penn.  State  Rep.  513.     Uraughan  v.  Banting,  9  Ired.  10.    Brown 

V.  O'Brien,  1  Richardson,  268.     Bohanan  v.   Pope,  42   Maine,  93.     Fetch  v. 

Taylor,  13  Pick.  136.     Carnegie  v.  Morrison,  2  Met.  381.     Arnold  v.  Lyman, 

1 7  Mass.  400.     In  this  last  case,  H.  transferred  choses  in  action  and  goods  to 

L.  who,  in  consideration  thereof  promised  to  pay  a  debt  of  a  specified  amount 

due  from  H.  to  A.,  and  A.  maintained  an  action  against  L.  on  this  promise. 

But  where  property  was  assigned,  and  the  assignees  promised,  in  consideration 
14 


210  LAW   OF    CONTRACTS. 

received,  though  he  had  never  consented  so  to  pay  it.  (a)  And 
it  seems  that  by  the  old  law  of  England,  a  person  receiving 
property  from  A.,  to  be  applied  to  the  use  of  B.,  was  answer- 
able to  an  action  by  B.,  without  any  promise  to  him.  {b) 

The  fluctuation  of  decisions  in  England,  on  this  subject 
of  a  consideration  arising  from  third  persons,  has  been  the 
cause  of  opposite  decisions  in  this  country.  In  some  of  the 
state  courts,  the  cases  of  Bourne  v.  Mason  and  Crow  v. 
Rogers  (cited  ante,  205)  have  been  supposed  to  furnish  the 
authoritative  rule,  and  have  been  followed,  (c)  Other  courts 
seem  to  have  supposed  that  those  cases  were  overruled,  or  at 
least  that  they  did  not  furnish  the  true  rule  of  law  ;  but 
that  such  rule  was  to  be  found  in  Com.  Dig.  Action  upon 
the  Case  upon  Assumpsit,  E.  a.  in  Vin.  Ab.  Action  of  As- 
sumpsit, Z.,  and  in  the  opinions  expressed  by  Lord  Holt,  1  Ld. 
Raym.  368,  369,  by  Lord  Mansfield,  1  Doug.  146  and  Cowp. 
443,  and  by  Buller,  J.,  1  Bos.  &  Pul.  101,  note.  These  and 
similar  authorities,  said  Shaw,  C.  J.,  2  Met.  405,  no  doubt  had 
their  influence  in  settling  the  law  in  Massachusetts,  before 
the  period  (1804)  at  which  the  state  reports  commence.  The 
first  decision  on  this  subject,  in  Massachusetts,  is  Felton  i\ 
Dickinson,  10  Mass.  287,  where  a  son  maintained  an  action  on 
a  promise,  made  for  his  benefit,  to  his  father.  Then  followed 
several  actions,  (which  are  cited  ante,  209,  note  6,)  that 
were  maintained  on  the  ground  that  the  defendants  had 
received  money,  goods  or  choses  in  action,  to  be  applied  to 
the  use  of  the  plaintiffs.  The  last  case  was  Brewer  v.  Dyer,  7 
Cush.  337,  where  A.,  a  lessee  by  indenture,  without  assigning 
the  lease,  put  B.  into  possession  of  the  demised  premises,  on 

thereof,  to  pay  all  the  debts  of  a  certain  corporation,  and  there  was  no  speci- 
fication of  its  creditors,  nor  of  the  amount  of  their  dues,  it  was  held  that  no 
such  creditor  could  maintain  an  action  against  the  assignees.  Dow  v.  Clark,  7 
Gray,  198.  And  see  Fairlie  v.  Denton,  8  Barn.  &  Cres.  395  and  2  Man.  & 
Ryl.  353. 

(a)  Hall  v.Marston,  17  Mass.  575.     But  see  15  N.  Hamp.  135,  136. 

(b)  Dishorn  v.  Denaby,  1  D'Anv.  Ab.  64.     Starkey  o.  Mill,  Style,  296. 

(c)  Blymire  v.  Boistle,  6  Watts,  182.  Morrison  *;.  Beckey,  ib.  349.  Ow- 
ings  Ex'rs  v.  Owings,  1  Har.  &  Gill,  484.  Ross  v.  Milne,  12  Leigh,  204.  But- 
terfield  v.  Hartshorn,  7  N.  Hamp.  345.     Warren  v.  Batchelder,  15  ib.  129. 


OF   THE   CONSIDERATION.  211 

being  promised  by  him  that  he  would  pay  the  rent  to  the 
lessor ;  and  the  lessor  maintained  an  action  against  B.  on 
this  promise.  The  court  have  since  declined  to  extend  this 
doctrine  to  any  new  case,  and  have  decided  that  on  a  prom- 
ise, made  to  the  seller  by  the  buyer  of  an  equity  of  redemp- 
tion, to  secure  and  cancel  the  mortgage,  with  the  note  for 
which  it  was  given,  no  action  lies  by  the  mortgagee,  (a) 

Where  it  is  held  that  be  for  whose  benefit  a  promise  is 
made  to  another  may  maintain  an  action  thereon,  it  is  also 
held  that  he  to  whom  the  promise  is  made  may  maintain 
an  action.  Either  of  them,  say  the  books,  may  bring  the 
action,  (b)  It  was  said  in  Hardr.  321,  that  where  a  promise 
is  made  to  a  father  for  the  benefit  of  his  son,  the  declaration 
must  be  upon  a  promise  made  to  the  father,  though  the  son 
bring  the  action.  But  it  is  not  perceived  how  a  party  can 
recover  in  assumpsit  unless  he  alleges  a  promise  to  him- 
self. And  Eyre,  C.  J.,  1  Bos.  &  Pul.  102,  said  that  « in  the 
case  of  a  promise  to  A.  for  the  benefit  of  B.,  and  an  action 
brought  by  B.,  the  promise  must  be  laid  as  being  made  to 
B.,  and  the  promise  actually  made  to  A.  may  be  given  in 
evidence  to  support  the  declaration."     But  see  17  Verm.  250. 

Consideration  which  a  party  cannot  perform. 

To  support  a  contract,  the  consideration  thereof  must  be 
such,  when  the  contract  is  made,  as  the  party  can  physically 
and  legally  perform,  (c)  "  Every  person,"  said  Lord  Kenyon, 
3  T.  R.  22,  "  who,  in  consideration  of  some  advantage,  either 
to  himself  or  another,  promises  a  benefit,  must  have  the  power 
of  conferring  that  benefit  up  to  the  extent  to  which  that  benefit 
professes  to  go ;  and  that  not  only  in  fact  but  in  law." 

(a)  Mellen  v.  Whipple,  1  Gray,  317.  See  also  Millard  v.  Baldwin,  3  Gray, 
484.     Field  v.  Crawford,  6  Gray,  117. 

(6)  Hardr.  321.  Aleyn,  1.  Hammond  on  Parties,  9.  2  Greenl.  Ev. 
§  109.     7  Gush.  340,  341.     42  Maine,  93. 

(c)  See  Grotius,  Book  II.  c.  xi,  §  8.  Puffendorf,  Book  III.  c.  vii,  §§  1,  3-10. 
Rutherforth,  Book  I.  c.  xii,  §  7.  1  Powell  on  Con.  160  §•  seq.  178, 179.  3 
Chit,  on  Law  of  Com.  &  Manuf.  100.  Chit,  on  Con.  (10th  Amer.  ed.) 
54-56. 


212  LAW   OP   CONTRACTS. 

Few  cases  are  to  be  found,  in  which  a  promise  has  been 
held  void  on  the  mere  ground  that  the  consideration  was  not 
in  the  promisor's  power  legally  to  perform.  In  Harvy  v. 
Gibbons,  2  Lev.  161,  where  the  defendant  promised  to  repair 
the  plaintiff's  barge,  in  consideration  that  the  plaintiff  would 
discharge  him  of  .£20,  due  from  him  to  a  third  person,  judg- 
ment for  the  plaintiff  was  reversed,  because  he  could  not  dis- 
charge a  debt  to  another.  And  in  Nerot  v.  Wallace,  3  T.  R. 
17,  where  the  friend  of  a  bankrupt  promised  to  pay  his  as- 
signees all  such  sums  as  the  bankrupt  had  received  on  a 
certain  partnership  account  and  had  not  accounted  for, 
in  consideration  of  the  partners'  engagement  to  forbear  and 
desist  from  taking  an  examination,  before  the  commissioners, 
concerning  such  sums,  and  that  the  commissioners  also 
would  forbear  and  desist  from  such  examination,  judgment 
for  the  assignees  was  reversed  on  the  ground,  in  part,  that  they 
could  not  prevent  the  commissioners  from  proceeding  in  the 
examination,  (a) 

When  a  party  promises  that  a  third  person  shall  do  an  act, 
the  promise  will  be  on  a  valid  consideration,  if  the  thing  to  be 
done  by  such  person  be  not  physically  impossible,  or  beyond 
his  legal  ability.  The  law  intends  that  it  is  in  the  promisor's 
power  to  cause  the  third  person  to  do  the  act  stipulated  for ;  or 
that,  when  he  made  the  promise,  he  intelligently  assumed  the 
risk  of  being  unable  to  effect  the  object,  and  of  being  answer- 
able in  damages  for  its  failure,  (b)  The  case  of  Harvy  v.  Gib- 
bons, supra,  would  probably  have  been  decided  for  the  plaintiff, 
if  the  promise  had  been  that  the  third  person  should  discharge 
him  from  the  £20  debt.  And  in  other  cases  where  the  promise 
is  to  do  a  thing  possible  in  itself,  though  it  is  beyond  the 
power  of  the  promisor  to  perform  it,  he  will  be  held  liable  to 
an  action  for  damages  sustained  by  his  non-performance ;  his 

(a)  The  principal  ground  of  tliis  decision  was,  that  the  agreement  was  un- 
lawful. See  Haslam  i;.  Sherwood,  4  Moore  &  Scott,  434  and  10  Bing.  540. 
Maegregor  v.  Official  Manager  of  Dover  &  Deal  Railway,  &c.  18  Ad.  &  El. 
N.  S.  618. 

(6)  Doughty  i>.  Neal,  1  Saund.  216  and  note.  Hesketh  v.  Gray,  Sayer, 
185.     Mounsey  v.  Drake,  10  Johns.  29. 


OP   THE    CONSIDERATION.  21S 

performance  not  being  excused  by  any  contingency,  though  not 
foreseen  by  him  and  not  within  his  control.  In  such  a  case  it 
is  held  to  be  his  own  fault  that  he  did  not  expressly  provide 
against  contingencies.  A  leading  case  on  this  point  is  Para- 
dine  V.  Jane,  Aleyn,  26,  where  a  lessee,  who  had  covenanted 
to  pay  rent,  was  held  liable  to  pay  it,  though  he  had  been  ex- 
pelled from  the  demised  premises  by  Prince  Rupert  and  his 
soldiers,  who  were  the  king's  enemies.  The  same  was  held  in 
Pollard  V.  Schaaffer,  1  Dallas,  210.  Yet  it  was  further  ht-ld  in 
that  case,  that  the  lessee  was  not  bound,  by  his  covenant  to 
keep  and  deliver  up  the  premises  in  good  repair,  to  repair 
waste  committed  thereon  by  the  British  army  that  took  pos- 
session of  the  premises  and  occupied  them.  But  this  decision 
has  been  questioned.  See  5  Barb.  671.  When  the  premises 
are  destroyed  by  accidental  fire,  or  by  lightning  or  tempest,  or 
by  falling  from  weakness  and  decay,  the  lessee  must  pay 
rent  (a)  and  must  repair,  (b)  if  he  has  so  engaged  without  an  ex- 
press provision  exonerating  him.  2  Piatt  on  Leases,  120, 186. 
It  is  now  a  common  learning,  that  when  a  person  makes  an 
absolute  and  unqualified  contract  to  do  some  particular  act, 
the  impossibility  of  performance  occasioned  by  inevitable  ac- 
cident, or  some  unforeseen  occurrence,  will  not  release  him. 
As  if  a  ship-owner  engages  to  procure  and  ship  a  cargo  of 
guano,  corn,  or  dye-wood,  at  a  specified  port,  the  fact  that 
no  such  article  can  be  procured  there,  or  that  its  exporta- 
tion has  there  been  prohibited,  or  that  the  loading  of  it  is 
prevented    by   an    embargo,    or    by    pestilence,    furnishes    no 

(a)  Belfour  v.  Weston,  1  T.  R.  310.  Fowler  v.  Bott,  6  Mass.  63.  Bige- 
low  V.  CoUamore,  5  Cush.  226.  Hallett  v.  VVylie,  3  Johns.  44.  Allen  r.  Cul- 
ver, 3  Denio,  294.  Davis's  Adm'r  i\  Smith,  15  Missouri,  467.  Beach  v. 
Farish,  4  Cal.  339.  Peterson  v.  Edmonson,  5  Harrington,  378.  Linn  v. 
Ross,  10  Ohio,  412.  Redding  i-.  Hall,  1  Bibb,  536.  Wagner  ji.  White,  4 
Har.  &  Johns.  564.  Peck  v.  Ledwidge,  25  Illinois,  112.  Niedelet  v.  Wales, 
16  Missouri,  214.     Proctor  v.  Keith,  12  B.  Monroe,  252. 

(b)  Bullock  V.  Dommitt,  6  T.  R.  650.  Brecknock  Co.  v.  Pritchard,  ib.  750. 
Phillips  V.  Stevens,  16  Mass.  2;^8.  Leavitt  v.  Fletcher,  10  Allen,  119.  Green 
V.  Bales,  2  Ad.  &  El.  N.  S.  225  and  1  Gale  &  Dav.  468.  Dermott  v.  Jones, 
2  Wallace  (U.  S.)  7,  8.  School  District  v.  Dauchy,  25  Conn.  530.  School 
Trustees  of  Trenton  v.  Bennett,  3  Dutcher,  513. 


214  LAW   OP   CONTRACTS. 

answer  to  an  action  for  breach  of  the  engagement,  (a)  And 
when  a  lessee  covenants  to  repair,  except  in  case  of  casual- 
ties by  fire,  &c.,  yet  if  he  covenants  to  pay  rent  and  does  not 
except  casualties,  he  will  be  held  to  pay  rent,  although  the 
demised  premises  are  destroyed  by  fire  or  tempest,  (b)  There 
is,  however,  an  established  difference  between  a  duty  created 
by  law  and  a  duty  created  by  contract.  When  the  law  cre- 
ates a  duty  and  the  party  is  disabled  to  perform  it,  without 
any  default  in  him,  and  he  has  no  remedy  over,  the  law  will 
excuse  him.  (c)  So  the  non-performance  of  a  contract,  it  is 
said,  will  always  be  excused,  when  it  is  occasioned  by  act 
of  law  or  by  an  act  done  by  public  authority,  (d) 

As  to  contracts  to  do  what  it  is  physically  impossible  to 
do,  the  law  is  stated  thus  :  "  If  the  thing  to  be  done  is  no- 
toriously physically  impossible,  and  was  known  to  be  so  by 
both  parties,  at  the  time  of  the  making  of  the  contract,  the 
contract  is  void."  (e)  The  books  generally  mention  a  prom- 
ise to  go  from  London  to  Rome  in  three  hours,  as  a  promise 
that  would  be  void,  because  impossible  to  be  performed. 
But  a  distinction  is  not  to  be  overlooked  :  "  If  the  condition 
of  a  bond  be  impossible  at  the  time  of  the  making  thereof, 
the  bond  is  single,  for  it  is  the  same  as  if  there  were  no  con- 
dition at  all ;  and  a  feoffment,  on  condition  that  the  feoffee 
go   to    Rome    in    a  day,    is  absolute,  for    the  condition   is 

(a)  Sjoerds  v.  Luscombe,  16  East,  201.  Barker  v.  Hodgson,  3  M.  &  S. 
267.  Blight  V.  Page,  3  Bos.  &  Pul.  295  note.  Marquis  of  Bute  v.  Thomp- 
son, 13  Mees.  &  Welsh.  493,494.  Hills  v.  Sughrue,  15  ib.  253.  Kirk  v. 
Gibbs,  1  Hurlst.  &  Norm.  810.  Hadley  v.  Clarke,  8  T.  R.  259.  Atkinson  v. 
Ritchie,  10  East,  530.  Gilpins  v.  Consequa,  Peters,  C.  C.  85  and  3  Wash. 
C.  C.  184.  Harmony  v.  Bingham,  2  Kernan,  99.  Stone  v.  Dennis,  3  Porter, 
231.  Combs  V.  Fisher,  3  Bibb,  51.  Clancy  v.  Overman,  1  Dev.  &  Bat.  402. 
Baylies  v.  Fettyplace,  7  Mass.  325.    But  see  3  Best  &  Smith,  826. 

(b)  3  Kent  Com.  (11th  ed.)  600  Sf  seq.  Monk  v.  Cooper,  2  Strange,  763 
and  2  Ld.  RajTn.  1477.  Belfour  v.  Weston,  1  T.  R.  310.  Brown  v.  Quilter, 
Amb.  619.     Hare  v.  Graves,  3  Anstr.  687.     Kramer  v.  Cook,  7  Gray,  553. 

(c)  2  Saund.  421  a,  note.  Story  on  Bailm.  §  31.  Chit,  on  Con.  (10th 
Amer.  ed.)  804,  805.  15  Missouri,  469.  19  Pick.  270.  1  Dallas,  211.  1 
Dev.  &  Bat.  405. 

((/)   Chit,  on  Con.  supra. 

(e)  Addison  on  Con.  (5th  ed.)  1037.     1  Powell  on  Con.  161. 


OP   THE   CONSIDERATION.  215 

repugnant  to  the  feoffment.  But  if  an  estate  be  to  arise,  or 
a  duty  to  commence,  on  a  precedent  condition  that  is  impos- 
sible, they  can  never  have  effect."  Bac.  Ab.  Conditions, 
M.  N.  And  see  1  Powell  on  Con.  266.  Cora.  Dig.  Con- 
dition, D.  1.  1  Stephen's  Com.  (5th  ed.)  308,  309.  2  ib. 
107,  108.     Broom's  Maxims,  216-228. 

There  are  anomalous  cases  of  unconscionable  bargains,  in 
which  promisors  have  been  excused  from  performance  ac- 
cording to  the  terms  of  the  bargains,  and  in  which  the  prom- 
isee recovered  only  what  was  fairly  due  to  him. 

James  v.  Morgan,  1  Lev.  Ill,  was  "  assumpsit  to  pay  for  a 
horse  a  barleycorn  a  nail,  doubling  it  every  nail ;  and  avers 
that  there  were  thirty-two  nails  in  the  shoes  of  the  horse, 
which,  being  doubled  every  nail,  came  to  five  hundred  quar- 
ters of  barley.  The  cause  being  tried  before  Hyde,  J.,  he 
directed  the  jury  to  give  the  value  of  the  horse  in  damages, 
being  £8,  which  they  did  ;  and  judgment  was  given  for  the 
plaintifiV  And  Lee,  C.  J.,  in  1  Wils.  295,  approved  this  de- 
cision. A  similar  decision  was  made  in  Cutler  v.  How,  8 
Mass.  257,  and  in  Baxter  v.  Wales,  12  Mass.  365,  where  the 
jury  were  instructed  that  they  might  consider  the  contract 
unconscionable  and  might  assess,  as  damages,  such  sum  as 
would  relieve  the  defendant  from  what  was  oppressive  in  the 
contract.  Such  cases  are  at  variance  with  the  rule  that  a 
party  must  recover  according  to  his  contract,  if  he  sue  upon 
it,  or  not  recover  at  all.  When  an  express  contract  is  void, 
and  it  is  not  equitable  that  the  defendant  should  retain 
property  without  paying  for  it,  the  usual  course  is  to  dis- 
regard that  contract  and  sue  upon  an  implied  one. 

In  Thornborow  v.  Whitacre,  2  Ld.  Raym.  1164  and  6 
Mod.  305,  the  defendant,  in  consideration  of  half  a  crown, 
promised  to  pay  two  grains  of  rye  on  Monday  the  29th  of 
March,  four  grains  the  next  Monday,  doubling  every  Mon- 
day for  a  year.  A  declaration  on  this  promise  was  de- 
murred to,  on  the  ground  that  performance  was  impossible, 
"  as  all  the  rye  in  the  world  was  not  so  much."  But  "  the 
counsel  for  the  defendant  perceiving  the  opinion  of  the  court 


216  LAW   OF   CONTRACTS. 

to  be  against  his  client,  offered  the  plaintiff  his  half  crown 
and  his  cost,  which  was  accepted  of,  and  so  no  judgment 
was  given  in  the  case." 

Consideration  void  in  part. 

When  one  of  two  considerations  is  void  merely  for  insuf- 
ficiency, and  not  for  illegality,  the  other  will  support  the  con- 
tract. As  a  promise  in  consideration  of  an  assignment  of 
title  to  dower,  and  of  forbearing  to  sue  an  attachment  out 
of  chancery  upou'a  decree.  For  though  a  title  to  dower  can- 
not be  assigned,  yet  the  forbearance  will  support  the  con- 
tract, {a)     So  of  other  like  cases,  {b) 

But  if  one  of  two  considerations  of  an  entire  contract  be 
illegal,  either  by  the  common  law  or  by  statute,  the  whole  con- 
tract is  void ;  (c)  as  if  part  of  the  consideration  of  a  bill  of 
exchange  or  promissory  note  be  spirituous  liquor  sold  con- 
trary to  law,  though  the  other  be  lawful,  {d) 

It  was  formerly  supposed  that  if  any  part  of  a  contract  was 
void  by  statute,  and  especially  by  the  statute  of  frauds,  the 
whole  was  void.  But  it  is  now  settled,  that  if  any  part  of  an 
agreement  is  valid  it  will  avail  pro  tanlo,  though  another  part 
of  it  may  be  prohibited  by  statute,  provided  the  sound  part 
can  be  separated  from  the  unsound,  and  be  enforced  without 
injustice  to  the  promisor ;  as  will  be  seen  post.  248  4'  seq. 

Unlawful   Consideration. 

According  to  Mr.  Chitty,  whose  description  of  a  simple 
contract  has  been  repeatedly  cited,  the  consideration  must  be 

(a)  Coiilston  v.  Carr,  Cro.  Eliz.  847.  Com.  Dig.  Action  upon  the  case  upon 
Assumpsit,  B.  13. 

(I))  Pikard  v.  Cottels,  Yelv.  56.  Crisp  v.  Gamel,  Cro.  Jac.  128.  King  u. 
Sears,  2  Crompt.  Mees.  &  Rose.  48  and  5  Tyrwh.  587.  Chit,  on  Con.  (10th 
Amer.  ed.)  56.     Wesleyan  Seminary  v.  P'isher,  4  Mich.  526. 

{c)  Featherston  v.  Hutchinson,  Cro.  Eliz.  19!)  and  3  Leon.  208.  Morris  v. 
Chapman,  T.  Jon.  24.  Wait  v.  Jones,  1  Scott,  735,  736  and  1  Bing.  N.  R. 
664.  Filson's  Trustees  v.  Himes,  5  Barr,  452.  CoUins  v.  Merrell,  2  Met. 
(Ky.)  163.     Crawford  v.  Morrell,  8  Johns.  253.     37  Alab.  46. 

(d)  Scott  V.  Gihnore,  3  Taunt.  226.  Gaitskill  v.  Greathead,  1  Dowl.  &  Ryl. 
359.  Deering  v.  Chapman,  22  Maine,  488.  Yundt  v.  Roberts,  5  Serg.  &  R. 
139.     Carlton  v.  Bailey,  7  Foster,  230.     Perkins  v.  Cummings,  2  Gray,  258. 


OF   THE    CONSIDERATION.  217 

sufficient  and  legal,  and  the  agreement  must  be  "  to  perform 
some  legal  act,  or  omit  to  do  anything,  the  performance 
whereof  is  not  enjoined  by  law  ; "  that  is,  the  consideration 
must  be  lawful,  and  the  thing  to  be  done  or  omitted  must 
also  be  lawful,  or  the  agreement  is  void.  It  is  not  only  use- 
less but  difficult  to  illustrate  these  two  points  separately,  by 
examples.  To  every  agreement  there  are  in  fact  two  con- 
siderations. This  is  manifest  in  the  cases  of  mutual  prom- 
ises executory,  as  in  the  case,  for  example,  of  Gibbons  v. 
Prewd,  Hardr.  102.  The  plaintiff  promised  to  convey  to  the 
defendant  all  his  interest  in  the  estate  of  a  person  deceased, 
before  a  certain  day,  and  the  defendant  promised  to  pay  the 
plaintiff  £25  before  the  same  day.  The  consideration  of  the 
plaintiff's  promise  was  the  promise  of  the  defendant,  and 
vice  versa.  Had  the  promise  of  either  been  to  do  an  unlawful 
act,  the  contract,  that  is,  the  promise  of  each,  would  have  been 
void.  The  same  is  equally  true,  though  perhaps  less  ob- 
viously so,  of  all  other  agreements,  whether  executory,  or  ex- 
ecuted on  one  side  only,  or  executed  on  both  sides.  Thus, 
where  an  officer,  in  consideration  of  a  promise  of  indemnity, 
suffers  a  prisoner  in  execution  to  escape,  the  consideration  is 
executed  on  his  part,  and  executory  on  the  part  of  the  prom- 
isor. Here  there  is  not  only  the  promise  of  indemnity,  as  the 
consideration  for  the  officer's  act,  but  there  is  the  officer's  act, 
either  done  or  agreed  to  be  done,  as  the  consideration  for 
the  promise  of  indemnity.  And  so  of  all  other  contracts; 
as  might  be  shown  by  a  glance  at  the  pleadings  of  both 
parties,  if  both  should  sue.  Either  party  to  a  contract  may 
sue  the  other  for  a  breach  of  it ;  and,  in  all  cases,  it  is  neces- 
sary to  set  forth,  in  the  declaration,  the  consideration  of  the 
contract,  as  well  as  the  terms  of  it.  When,  for  example,  an 
action  is  brought  on  a  contract  for  A.'s  doing  one  thing  in 
consideration  of  B.'s  doing  another  thing,  if  A.  sues,  he  states, 
in  his  declaration,  the  thing  to  be  done  by  himself,  as  the  con- 
sideration of  the  promise  made  to  him  by  B.  If  B.  sues,  he 
states  the  thing  to  be  done  by  himself  as  the  consideration  of 
A.'s  promise  to  him. 

A  consideration  on  one  side  may  be  lawful,  and  unlawful 


218  LAW   OF   CONTRACTS. 

on  the  other ;  that  is,  a  promise  to  do  a  lawful  act  may  be 
made  on  an  unlawful  consideration ;  or  a  promise  to  do  an 
unlawful  act  may  be  made  on  a  lawful  consideration  :  As  if 
A.  promise  to  reap  B.'s  field,  in  consideration  that  B.  will 
beat  C,  or  cause  him  to  be  beaten,  or  if  B.  promise  to  beat 
C,  in  consideration  that  A.  will  reap  B.'s  field.  In  such  case, 
as  one  or  the  other  party  may  happen  to  sue,  the  consideration, 
or  the  promise,  will  be  illegal.  So  both  considerations,  or  the 
consideration  on  both  sides,  may  be  unlawful.  As  if  A.  prom- 
ise to  beat  C,  in  consideration  that  B.  will  not  give  evidence 
against  him,  if  called  as  a  witness.  These  contracts  are 
equally  void,  and  none  of  them  can  be  enforced,  (a) 

Contracts  are  said  to  be  illegal,  either  because  the  consid- 
eration of  a  promise  is  illegal,  or  because  the  promise  is  il- 
legal. The  distinction  is  without  a  difference.  At  least  there 
is  no  difference,  in  effect,  between  the  two.  Wherever  the 
illegality  lies,  the  contract  cannot  be  supported  in  a  court 
of  law.  And  it  will  be  found,  it  is  believed,  that  the  phrase 
"  void  for  illegal  consideration "  is  usually  adopted  only 
in  those  cases  where  the  party,  from  whom  an  illegal  con- 
sideration moved,  sues  for  the  breach  of  a  promise  which  is 
not  in  itself  illegal :  As  if  an  officer  sues  on  a  promise 
of  indemnity,  in  itself  an  unexceptionable  promise,  the  con- 
sideration of  which  was  his  permitting  an  escape,  an  un- 
lawful act.  If  the  other  party  sue  the  officer  for  not  per- 
mitting the  prisoner  to  go  at  large,  according  to  agreement, 
the  language  would  be  that  the  contract  was  illegal ;  for  the 
consideration  of  the  contract  on  the  part  of  the  party  suing, 
and  from  whom  it  moved,  was  not  illegal. 

This  difference  of  language,  that  is,  sometimes  saying  the 
promise  is  void  for  illegal  consideration,  and  sometimes  that 
the  contract  is  void  because  it  is  illegal,  tends  to  confuse, 
and  may  leave  the  impression  that  the  party  to  a  contract, 
who  stipulates  for  nothing  unlawful  on  his  part,  may  en- 
force his  claim  against  the  other  party,  though  the  other 
party,  on  whom  the  illegality  rests,  cannot  enforce  the  con- 
tract against  him.     The  law  is  not  so.     The  whole  contract 

(a)   Sue  1  PowuU  on  Con.  176. 


OP  THE   CONSIDERATION.  219 

is  void  (to  speak  with  technical  precision)  whenever  the  con- 
sideration on  either  side  is  unlawful ;  that  is,  whether  that 
which  is  the  ground  of  the  promise  on  one  part,  or  the  thing 
which  is  promised  to  be  done  on  the  other  part,  is  unlawful, 
all  is  void,  and  neither  party  can  derive  any  assistance  from  a 
court  of  law  or  of  equity  to  carry  it  into  effect. 

Failure  of  Consideration. 

When  the  consideration  of  a  contract  fails,  that  is,  when 
what  was  supposed  to  be  a  consideration  is  none,  the  con- 
tract may  be  avoided.  If  money  has  been  paid,  it  may  be 
recovered  back,  where  the  consideration  fails  ;  or  if  a  note, 
&c.,  has  been  made,  failure  of  consideration  is  a  sufficient  de- 
fence  to  a  suit  brought  to  enforce  payment  or  performance. 

When  real  estate  is  conveyed  by  deed,  with  warranty,  and 
notes  are  given  for  the  price,  the  decisions  in  this  country  gener- 
ally are,  that  a  partial  failure  of  title  to  the  estate  is  not  a  full 
defence  to  actions  on  the  notes,  unless  the  grantor  was  guilty  of 
fraud,  {a)  In  some  cases  the  grantee,  when  sued  for  the  price, 
has  been  allowed  to  show  partial  failure  in  reduction  of  dam- 
ages, {b) 

The  decisions  are  not  uniform  on  the  question  whether 
total  failure  of  title  is  a  defence  to  an  action  for  the  price.  In 
New  Hampshire,  Massachusetts,  Connecticut,  Illinois,  and 
New  York,  such  failure  is  a  defence,  [c)      Contra,  in  Maine  ; 

(a)  Greenleaf  v.  Cook,  2  Wheat.  13.  Lloyd  v.  Jewell,  I  Greenl.  352. 
Howard  v.  Witham,  2  ib.  390.  Brown  v.  Reves,  19  Martin,  235.  Long  v. 
Allen,  2  Florida,  403.  Hay  v.  Taliaferro,  8  Smedes  &  Marsh.  727.  Van  Lew 
V.  Parr,  2  Richardson  Eq.  321.  Wilson  v.  Jordan,  3  Stew.  &  Port.  92.  White 
V.  Beard,  5  Porter,  94.  Lattin  v.  Vail,  17  Wend.  188.  Tallmadge  v.  Wallis, 
25  Wend.  107  and  cases  there  discussed.  Smith  v.  Sinclair,  15  Mass.  171. 
Wentworth  v.  Goodwin,  21  Maine,  150.     Barkhamsted  v.  Case,  5  Conn.  528. 

(6)  See  11  Conn.  438.  Hart  v.  Ex'rs  of  Porter,  5  Serg.  &  R.  203,  206. 
Van  Epps  v.  Harrison,  5  Hill,  63. 

(c)  Tillotson  V.  Grapes,  4  N.  Hamp.  448.  Rice  v.  Goddard,  14  Pick.  293. 
Trask  v.  Vinson,  20  ib.  110.  Cook  v.  Mix,  11  Conn.  432,  Tyler  r.  Young, 
2  Scammon,  447.  Davis  v.  McVickers,  11  Illinois,  327.  Frisbee  v.  HofTnagle, 
11  Johns.  50.  This  last  case  has  been  said  to  be  overruled  ;  but  according  to 
Chancellor  Walworth  in  25  Wend.  116  and  Chief  Justice  Nelson  in  Tibbets  v. 
Ayer,  Hill  &  Denio,  179,  the  only  objection  to  that  case  is,  not  to  the  princi- 


220  LAW   OP   CONTRACTS. 

the  covenants  in  a  deed  being  there  held  to  be  a  sufficient 
consideration  for  a  note,  (a) 

To  avoid  circuity  of  action,  courts  have  of  late  permitted 
partial  failure  of  consideration  to  be  a  defence  pro  tanto  in 
suits  on  contracts  respecting  personal  property,  work  and 
labor,  &c.  As  in  the  case  of  a  contract  to  build  a  house  in  a 
particular  manner,  and  at  a  specified  price,  if  the  work  is  in- 
ferior to  that  which  was  agreed  on,  the  defendant  may  show 
this  fact  and  reduce  the  plaintiff's  compensation  to  the  actual 
benefit  received  by  the  defendant.     Ante,  7. 

By  the  common  law,  neither  the  want  nor  the  failure  of 
consideration  is  any  defence  to  an  action  on  a  bond,  or  other 
sealed  instrument,  except  a  bond  in  partial  restraint  of  trade. 
By  local  usage,  however,  in  some  of  the  States  of  the  Union, 
and  by  virtue  of  statutes  in  other  States,  as  seen  ante,  161, 
162,  such  defence  is  allowed,  (b) 

pie  of  the  decision,  which  is  held  to  be  sound,  but  to  the  application  of  that 
principle  to  facts  which  did  not  show  a  total  failure.  In  Hill  &  Denio,  supra, 
where  the  maker  of  a  note  given  as  part  consideration  for  a  conveyance  of  land, 
with  full  covenants,  had  been  evicted  from  the  whole  of  the  conveyed  prem- 
ises, it  was  decided  that  the  note  was  not  recoverable. 

(a)  Jenness  i'.  Parker,  24  Maine,  289,  and  extrajudicial  opinions  expressed 
in  Lloyd  v.  Jewell  and  other  cases  cited  supra. 

(b)  It  has  heretofore  been  mentioned,  that  a  court  of  chancery  will  not  en- 
force the  execution  of  a  sealed  contract,  if  it  be  purely  voluntary.  And  in 
the  case  of  Wright  f.  Moore,  Tothill,  2  7,  "a  voluntary  bond  of  £1000,  en- 
tered into  for  no  consideration,  was  cancelled  in  the  presence  of  the  judges." 


CHAPTER   IV. 

OF   UNLAWFUL   CONTRACTS. 

Every  contract  to  do  an  act  which  the  law  forbids,  or  to 
omit  an  act  which  the  law  enjoins,  is  void.  No  contract  can 
be  enforced,  nor  damages  recovered  for  the  breach  of  any  con- 
ti'act,  which  contravenes  the  principles  of  the  common  law,  the 
provisions  of  a  statute,  or  the  general  policy  of  the  law.  No 
form  of  words,  however  artfully  devised,  can  prevent  an  inves- 
tigation of  the  real  object  of  a  contract,  if  that  object  be  illegal. 
Nor  is  there  any  substantial  difference,  on  this  point,  between 
simple  contracts,  and  contracts  by  specialty.  Elegality  vitiates 
contracts  of  every  description. 

.  A  distinction  was  formerly  taken  between  malum  in  se  and 
maluiu  jyrohibitum  ;  and  some  contracts,  which  violated  merely 
statutory  provisions  or  general  policy,  were  subjected  to  less 
rigid  rules,  than  contracts  which  violated  natural  justice  or 
furthered  palpable  iniquity.  This  distinction  is  no  longer  rec- 
ognized. Every  act  is  now  regarded  as  unlawful,  which  the 
law  forbids  to  be  done  ;  and  every  contract  is  declared  void, 
which  contravenes  any  legal  principle  or  enactment,  (a) 

Unlawful  contracts  are  usually  divided  into  divers  species ; 
such  as  immoral,  fraudulent,  contrary  to  the  principles  of  the 
common  law,  contrary  to  the  policy  of  the  law,  contrary  to 
the  provisions  of  a  statute,  &c.  But  it  seems  unnecessary 
to  make  more  than  two  distinctive  species,  namely,  contracts 
which  violate  the  common  law,  and  contracts  which  violate  a 
statute. 

(a)  2  Bos.  &  Pul.  374.     3  B.  &  Aid.  183.     7  Greenl.  462.     3  Gush.  450. 


222  LAW   OF    CONTEACTS. 

I.    CONTRACTS    WHICH    CONTRAVENE    THE    PRINCIPLES    OF    THE 
COMMON    LAW. 

These  might  be  subdivided  almost  indefinitely  ;  for  the 
rules  of  the  common  law  are  almost  indefinitely  numerous. 
Convenience  requires  some  classification  ;  but  not  one  that  is 
very  minute. 

Contracts  void  for  immorality. 

All  contracts  which  have  for  their  object  any  thing  for- 
bidden by  the  immutable  laws  of  God  are  void  by  the  rules 
of  the  common  law,  which  adopts  and  lends  its  sanctions  to 
those  paramount  laws ;  such  as  a  contract  to  commit  murder, 
larceny,  perjury,  &c.,  or  to  pay  money,  or  do  any  other  act, 
in  consideration  of  the  commission  of  either  of  those  or  of 
any  similar  offences,  (a)  So  of  all  contracts  that  have  for 
their  object  any  thing  contra  honos  inores.  {b)  Thus,  an  agree- 
ment in  consideration  of  future  illicit  cohabitation  is  void,  (c) 
But  a  sealed  contract  made  in  consideration  of  past  seduction 
and  cohabitation,  or  past  cohabitation  without  seduction,  is 
not  unlawful,  but  will  be  enforced.  The  law,  in  such  case, 
regards  the  contract  as  obligatory  in  honor  and  conscience  ; 
as  intended  for  the  redress  of  an  injury  inflicted  by  the  party; 
as  prcemium  pvdoris  vel  pudicitice.  Such  appears  to  be  now 
the  law,  though  some  of  the  earliest  cases  do  not  fully  warrant 
the  doctrine,  {d)  But  parol  promises,  on  such  consideration, 
stand  on  different  ground.     No  consideration  is  necessary  to 

(a)  2  Co.  Lit.  206,  b.  1  Powell  on  Con.  165.  2  Pothier  on  Obligations 
(Evans  ed.)  72.  (6)  Cowp.  39. 

(c)  Walker  v.  Perkins,  3  Bur.  1568  and  1  W.  Bl.  517.  Franco  v.  Bolton, 
3  Ves.  368.  Gray  v.  Mathias,  5  Ves.  286.  Friend  v.  Harrison,  2  Car.  &  P. 
684. 

(c?)  See  Whaley  w.  ISTorton,  1  Vernon,  483.  Matthew  v.  Hanbury,  2  ib.  187. 
Bainham  v.  Manning,  ib.  242.  Spicer  v.  Hayward,  Pre.  Ch.  1 14.  Annandale  v. 
Harris,  2  P.  W.  432.  Cray  v.  Rooke,  Cas.  Temp.  Talb.  153.  Turner  v. 
Vaughan,  2  Wils.  339.  Hill  v.  Spencer,  Amb.  641.  1  Lomax  on  Ex'rs,  634- 
636.  Ram  on  Assets,  (Amer.  ed.)  186.  1  Story  on  Eq.  §  296.  Shaw  on 
Obligations,  64. 


UNLAWFUL.  223 

support  sealed  contracts,  though  an  illegal  consideration  makes 
them  void.  But  by  the  law  of  England  all  parol  (unsealed) 
promises  to  make  payment  for  past  illicit  intercourse,  even 
though  the  promisor  was  the  seducer,  are  void  for  want  of  a 
legal  consideration,  (a) 

In  Wolraven  v.  Jones,  1  Houston,  355,  where  a  woman 
sued  an  administrator  for  wages,  alleged  to  be  due  to  her  from 
the  intestate,  the  jury  were  instructed,  that  if  the  plaintiff 
did  not  live  with  the  intestate  in  the  character  and  capacity 
of  a  hired  woman  or  house  servant,  but  as  his  mistress,  the 
law  would  not  imply  a  contract  nor  enforce  an  express  one 
founded  on  such  a  consideration.  See  also  Robbins  v.  Potter, 
11  Allen,  588. 

A  parol  promise,  however,  by  the  reputed  father  of  a  bastard 
child,  to  pay  the  mother  an  annuity,  if  she  would  bring  up  the 
child  properly,  or  maintain  it  and  keep  the  connection  secret, 
is  held  to  be  valid,  on  the  ground  that  the  promisor's  object 
was  "  to  preserve  the  child  from  want,  to  relieve  himself  from 
being  compelled  to  support  it,  and  to  secure  to  the  child  the 
mother's  care."  (b)  And  in  Pennsylvania  it  has  been  decided 
that  seduction  and  begetting  a  bastard  child  was  a  sufficient 
legal  consideration  for  a  parol  promise  to  give  the  mother  a 
bond  for  a  sum  of  money ;  if  the  promise  was  not  obtained  by 
any  oppression  or  unfairness,  (c) 

In  some  of  the  earlier  cases,  it  was  suggested  that  a  court 
of  chancery  would  grant  relief  to  the  obligor  in  a  bond  given 
to  a  common  prostitute  in  consideration  of  past  cohabitation. 
But  it  seems  that  relief  will  not  be  given,  in  such  case,  unless 

(a)  Matthews's  case,  1  Madd.  558.  Binnington  v.  Wallis,  4  B.  &  Aid. 
650.  Beaumont  v.  Reeve,  8  Ad.  &  El.  N.  S.  483.  These  last  two  cases  have 
overturned  the  decision  in  Gibson  v.  Dickie,  3  M.  &  S.  463,  unless  that  case 
can  be  upheld  on  a  ground  not  suggested  by  court  or  counsel,  namely,  that  a 
part  of  the  consideration  of  the  defendant's  promise  to  the  woman  was  his 
retaining  of  a  portion  of  bank  stock  and  money  that  he  had  received  of  her. 

(b)  Hicks  V.  Gregory,  8  C.  B.  378.  Jennings  v.  Brown,  9  Mees.  &  Welsb. 
496.     Smith  v.  Roche,  6  C.  B.  N.  S.  223. 

(c)  Shenk  v.  Mingle,  13  Serg.  &  R.  29.  And  see  Maurer  v.  Mitchell,  9 
Watts  &  Serg.  69. 


224  LAW   OF   CONTRACTS. 

there  be  fraud,  (a)  In  Clarke  v.  Perriam,  (b)  where  the  plaintiff 
sought  to  have  a  bond  enforced  as  prcemium  pudicilice,  and 
she  was  proved  to  have  been  a  prostitute  before  her  connection 
with  the  obligor,  the  lord  chancellor  dismissed  the  plaintiff's 
bill.  So  where  fraud  is  practised  on  the  woman,  chancery 
will  grant  relief,  as  in  other  contracts.  Thus  where  one  pre- 
tended to  convey  an  estate  to  a  woman,  as  prcsmium  pudicitiw^ 
when  in  fact  there  was  no  such  estate,  a  conveyance  was 
ordered  to  be  made  by  the  man  "  out  of  the  best  of  his  estate," 
equal  to  what  was  pretended  to  be  conveyed,  (c)  Lord  Hard- 
wicke,  in  the  case  of  Priest  v.  Parrot  [d)  dismissed  a  bill  for 
payment  of  a  bond  given  by  a  married  man  to  a  woman 
whom  he  had  seduced,  she  knowing  him  to  be  married,  and 
having  caused  a  separation  between  him  and  his  wife,  (e) 

In  Lady  Cox's  case,  (/)  Sir  J.  Jekyll,  Master  of  the  Rolls, 
decided  that  a  bond  given  to  a  second  wife,  who  lived  with 
the  obligor,  after  she  knew  he  had  a  former  wife  alive,  should 
be  postponed  to  all  simple  contract  debts  of  the  obligor,  who 
died  without  property  sufficient  to  pay  all  his  debts.  But  if 
she  had  left  the  obligor,  on  discovering  that  there  was  a 
lawful  wife  alive,  and  had  thereupon  taken  a  bond,  it  would 
have  "  been  a  just  bond,  and  for  a  meritorious  considera- 
tion." [g) 

A  contract  for  the  occupation  of  lodgings,  with  knowledge 
that  they  are  to  be  used  for  the  purpose  of  prostitution,  is 
void,  [h)  So  of  a  contract  for  board  and  lodging,  if,  in  addi- 
tion to  the  pay  therefor,  a  portion  of  the  profits  of  prostitution 
is  to  be  received  by  the  landlord.  (/)  So  of  a  contract  for 
clothes  to  be  paid  for  from  the  profits  of  prostitution  {j)  But 
board  and  clothing  furnished  to  a  prostitute,  though  with  knowl- 
edge that  she  is  such,  is  a  good  consideration  for  a  promise, 

(a)  See  2  Vernon,  242,  5  Ves.  286  and  Amb.  641.  Newland  on  Con.  483 
§•  seq.  (b)   2  Atk.  333. 

(c)   Cajy  V.  Stafford,  Amb.  520.  (d)  2  Ves.  Sen.  160. 

(e)  See  the  vice-chancellor's  remarks,  in  Matthews's  case,  1  Madd.  558. 

(/)   3  P.  W.  339.  (g)   See  Ex  parte  Cottrell,  Cowp.  742. 

(h)   1  Esp.  R.  13.     Ry.  &  Mood.  251. 

(0  1  Selw.  N.  P.  (1st  ed.)  60  (7th  Amer.  ed.)  66.  Chit,  on  Con.  (10th 
Anier.  ed.)  735.  (J)  i  Campb.  348. 


UNLAWFUL.  225 

express  or  implied,  unless  they  are  furnished  for  the  purpose 
of  enabling  her  to  pursue  a  course  of  prostitution,  (a) 

A  contract  for  the  sale  of  prints  of  an  obscene  and  immoral 
nature  is  void,  (b)  And  a  printer  cannot  recover  pay  for  print- 
ing a  work  of  a  grossly  immoral  nature,  (c) 

Though,  by  the  common  law,  wagers  on  indifferent  subjects 
are  legal,  yet  if  they  are  contra  bonos  mores,  and  lead  to  inde- 
cent examinations  and  disclosures,  they  are  void  for  illegality ; 
as  a  wager  upon  the  sex  of  a  third  person  ;  or  a  wager  that 
an  unmarried  woman  will  be  delivered  of  a  child  before  a 
certain  day.  [d) 

Contracts  to  do  or  omit,  or  in  consideration  of  doing-  or  omitting' 
acts,  the  doing  or  omitting  of  which  is  punishable  by  criminal 
process. 

Sevei-al  of  the  cases  under  the  preceding  head  fall  also 
within  this  principle.  Thus,  letting  a  house  to  a  woman  of 
ill  fame  for  Ihe  purpose  of  aiding  her  in  her  vicious  course  of 
life,  is  an  indictable  offence,  (e)  So  is  the  publishing  of  an 
obscene  print  or  book.  (/)  But  all  immoral  acts,  which,  if  the 
consideration  of  a  contract,  would  avoid  it,  are  not  indictable. 
All  acts,  however,  which  are  indictable,  or  otherwise  punisha- 
ble criminally,  will  render  a  contract  void,  if  they  form  any 
part  of  the  consideration.  Thus,  Lord  Ellenborough  held  that 
it  would  be  a  good  defence  to  an  action  for  not  supplying 
manuscript  to  complete  a  work  according  to  agreement,  that 
the  matter  of  the  intended  publication  was  of  an  unlawful 
and  indictable  nature,  [g)  So  a  bond,  note,  or  other  promise, 
given  in  consideration  of  stifling  or  compounding  a  prosecu- 
tion for  treason,  felony,  or  a  public  misdemeanor,  is  void  ;  [h)  or 

(a)   1  Bos.  &  Pul.  340.     1  Campb.  348.     2  Car.  &  P.  347. 
lb)  4  Esp.  R.  97.  (c)  2  Car.  &  P.  198. 

(c?)  Cowp.  729,  735,  736.     4  Campb.  152. 
(e)  3  Pick.  26. 

(/)  17  Mass.  337.     2  Stra.    788.     1  Russ.  on  Crimes  (7th  Amer.  ed.) 
233. 

{g)  Gale  v.  Leckie,  2  Stark.  R.  98. 

(/«)  2  Wils.  343.     5  East,  294.     1  Campb.  45,  55.     16  Mass.  91.     9  Verm. 
15 


226  LAW   OF    CONTRACTS. 

in  consideration  of  concealing  treason  or  felony,  which  is  a 
punishable  misprision  ;  (a)  or  of  compounding  informations  on 
penal  statutes,  in  criminal  cases,  (b) 

In  England,  where  the  party  injured  has  much  more  control, 
than  in  this  country,  of  a  prosecution  for  misdemeanors  that 
chiefly  affect  an  individual,  the  defendant,  afte?'  conviction,  is 
permitted  "  to  speak  to  the  prosecutor,"  before  sentence  is  pro- 
nounced ;  and  if  the  prosecutor  declares  himself  satisfied,  a 
light  punishment  is  inflicted.  In  such  cases,  an  agreement  to 
make  amends  to  the  party  injured,  to  pay  his  expenses,  &c., 
is  lawful,  though  the  intention  and  end  of  the  agreement  are 
to  mitigate  the  prisoner's  punishment,  (c)  And  the  costs  of 
an  indictment  for  an  assault,  &c.,  of  which  a  prisoner  has 
been  convicted,  where  judgment  has  been  respited,  is  a  lawful 
subject  of  submission  to  arbitration,  and  an  award  thereon  is 
binding  upon  the  parties,  that  is,  the  prosecutor  and  the  de- 
fendant, (d)  But  a  criminal  prosecution  is  not  a  lawful  sub- 
ject of  reference,  (e) 

A  note  given  to  procure  a  discharge  from  arrest  on  an  at- 
tachment out  of  chancery,  and  in  satisfaction  of  a  balance  of 
money  in  the  prisoner's  hands,  for  non-payment  of  which  the 
attachment  is  sued,  is  valid  ;  the  process,  though  criminal  in 
form,  being  really  civil  for  all  purposes  for  which  it  is  sued 
out  by  the  party,  and  therefore  subject  to  his  control.  (/)  So 
of  notes  given  to  an  officer,  who  has  a  warrant  of  distress,  or 
a  capias,  against  a  defendant  convicted  of  a  breach  of  the  ex- 
cise laws,  for  the  purpose  of  saving  his  property  from  sale,  or 

•23.  3  Car.  Law  Repos.  415.  1  Bay,  249.  1  Bailey,  588.  2  Southard,  470. 
5  N.  Hamp.  553.     4  Ohio,  400. 

(a)  4  Bl.  Com.  120,  121.     1  Chit.  Crim.  Law,  3,  4. 

(h)  4  Bl.  Com.  136. 

(c)  4  Bl.  Com.  364.  1  Russ.  on  Crimes,  (7th  Amer.  ed.)  131.  Beeley  v. 
Wingfield,  11  East,  46. 

(d)  Baker  v.  Townsend,  7  Taunt.  422,  and  1  Moore,  120.  See  also  The 
King  V.  Dunne,  2  M.  &  S.  201.  As  to  a  prosecutor's  rights  and  liabilities,  in 
England,  see  1  Chit.  Crim.  Law,  3-10. 

(e)  Watson  v.  McCullum,  8  T,  R.  520.  Kyd  on  Awards  (1st  Amer  ed.) 
63,  69. 

(/)  Brett  V.  Close,  16  East,  293. 


UNLAWFUL.  227 

* 

his  body  from  imprisonment,  (a)  But  if  an  officer  take  a  note, 
or  other  promise,  of  a  prisoner  sentenced  to  confinement  as  a 
punishment,  in  consideration  of  his  being  at  large,  and  as  a 
security  for  his  return  into  custody,  it  is  void;  the  indulgence 
being  a  breach  of  duty,  for  which  the  officer  is  indictable.  A 
fortiori  of  an  agreement  to  pay  an  officer,  or  other  person,  for 
an  entire  escape,  either  from  a  mere  arrest,  or  from  confine- 
ment in  prison,  (b) 

There  are  two  cases,  in  which  it  was  held  that  an  agree- 
ment in  consideration  of  compounding  a  misdemeanor,  which 
principally  affects  an  individual  (as  fraud,  &c.,)  is  lawful,  and 
may  be  enforced  by  action,  (c)  The  authorities,  that  have 
been  cited,  seem  to  settle  this  point  the  other  way.  In  Fal- 
lowes  V.  Taylor,  7  T.  R.  475,  a  bond  was  held  to  be  valid, 
though  the  consideration  on  which  it  was  given  was,  in 
part  at  least,  an  agreement  by  the  obligee  not  to  prefer  bills  of 
indictment  (which  were  prepared)  against  the  obligor  for  levy- 
ing nuisances  in  a  navigable  river.  The  condition  of  the  bond 
was  that  the  obligor  should  remove  the  nuisances  by  a  certain 
day,  and  should  at  no  time  erect  them  again.  The  recital 
prefixed  to  the  condition,  stated  that  the  obligee  had  been 
directed  by  the  quarter  sessions  to  prosecute  those  who  had 
levied  the  nuisances,  that  he  had  prepared  indictments,  and 
that  the  defendant  had  applied  to  him  not  to  prefer  them,  on 
condition  that  he  would  remove  the  nuisances  and  give  the 
bond.  The  defendant  pleaded  the  general  issue,  and  also  per- 
formance of  the  condition  ;  and  the  issue,  joined  on  the  last 
plea,  was  found  for  the  plaintiff.  A  motion  was  made  in 
arrest  of  judgment,  on  the  ground  that  the  contract,  disclosed 
in  the  condition  of  the  bond,  was  illegal.  But  the  motion  was 
overruled,    and   the    plaintiff  had  judgment,  (d)     It  did  not 

(a)  Pilkington  v.  Green,  2  Bos.  &  Pul.  151.  Sugars  v.  Brinkworth,  4 
Campb.  46. 

(b)  2  Hawk.  c.  19,  §§  17  Sf  seq.  4  Bl.  Com.  130.  Churchill  v.  Perkins,  5 
Mass.  541. 

(c)  Johnson  v.  Ogilby,  3  P.  W.  279.  Drage  v.  Ibberson,  2  Esp.  R.  643.  See 
Chief  Justice  Tindal's  remarks  on  these  cases,  in  9  Ad.  &  El.  N.  S.  393,  394. 

(c?)  But  see,  as  to  this  decision,  9  Ad.  &  El.  N.  S.  supra. 


228  .  LAW   OP   CONTRACTS. 

appear,  on  the  face  of  the  record,  that  the  bond  was  unlawful. 
Lord  Kenyon  said,  "  If  there  were  any  thing  illegal  in  the  con- 
sideration, the  defendant  should  have  pleaded  it."  It  is  neces- 
sary to  plead  the  illegality  of  a  bond  ;  [a)  but  if  it  might  be 
given  in  evidence,  the  defendant,  in  this  case,  gave  no  such 
evidence,  and  the  verdict  virtually  negatived  the  illegality. 

By  the  revised  statutes  of  New  York,  misdemeanors,  ex- 
cept in  certain  cases,  may  be  compromised,  either  before  or 
after  an  indictment.  But  an  assault  and  battery  cannot  be 
compromised  after  conviction.  (6) 

All  contracts  to  indemnify  persons  and  save  them  harmless, 
for  doing  indictable  acts,  are  void  for  illegality  ;  as  indemnities 
to  printers  for  publishing  libels  ;  or  to  any  person  for  commit- 
ting an  assault,  &c.,  upon  another. 

Contracts  for  the  maintenance  of  suits  are  void ;  mainte- 
nance being  an  indictable  offence.  So  of  contracts  involving 
champerty,  embracery,  and  the  buying  of  pretended  titles,  (c) 
The  sale  of  lands  out  of  the  vendor's  possession,  and  held 
adversely  at  the  time,  is  not  a  valid  consideration  for  a  prom- 
ise, [d)  And  no  action  can  be  sustained  by  a  purchaser 
against  the  seller  of  a  pretended  title,  on  account  of  the  seller's 
subsequent  fraudulent  connivance  with  the  tenant  to  defeat 
the  purchaser's  title,  (e) 

Dissuading  or  endeavoring  to  dissuade  a  witness  from  giv- 
ing evidence  against  a  person  indicted,  is  an  indictable  offence, 
and,  of  course,  any  promise,  made  to  a  witness,  in  considera- 
tion of  his  not  giving  evidence,  is  void.  (/)  Extortion  is  in- 
dictable,  and    any   obligation    taken   by   an    officer    for   the 

(a)  Harmer  v.  Rowe,  6  M.  &  S.  146. 

ip)  People  V.  Bishop,  5  Wend.  111.  See  also  the  Eev.  Sts.  of  Massachu- 
setts, c.  135,  §§  25,  26,  and  the  Gen.  Sts.  c.  170,  §  33.  Price  v.  Summers,  2 
Southard,  578. 

(c)  4  Bl.  Com.  134,§'  se?.  Moore,  751.  Dyer,  355,  b.  Carter,  229.  1 
Pick.  415.     5  Pick.  348. 

(rf)  2  Johns.  Cas.  58,  423.  2  Caines,  147.  The  law  as  to  maintenance 
and  champerty  is  not  now  in  force  in  New  York,  except  as  contained  in  the 
statutes  of  the  State.     4  Kernan,  289. 

(e)   Swett  i;.  Poor,  11  Mass.  549. 

(/)  Mason  v.  Watkins,  2  Vent.  109.     Badger  v.  Williams,  1  Chip.  137 


UNLAWFUL.  22® 

payment  of  what  is  not  due  to  him,  or  for  more  than  is  legally- 
due,  is  void,  (a) 

Contracts  contrary  to  sound  policy. 

The  case  of  Norman  v.  Cole  {h)  is  sometimes  cited  as 
having  decided  that  a  contract  to  pay  for  services  in  attempt' 
ing  to  obtain  the  pardon  of  a  convict  is  unlawful  and  void. 
But  the  ground  of  that  decision  seems  to  have  been,  that 
means,  which  Lord  Kenyon  deemed  unwarrantable,  were  to 
be  used  to  procure  a  pardon;  namely,  that  money  was  to  be 
given  to  M.,  a  person  of  good  connections,  and  having  access 
to  persons  of  influence,  for  using  his  interest,  by  representing, 
in  favorable  terms,  the  case  and  character  of  a  convict,  who 
was  under  sentence  of  death.  If  any  thing  more  was  decided, 
the  case  is  in  conflict  with  the  early  case  of  Lampleigh  v. 
Braithwait,  {c)  upon  the  authority  of  which  the  court  of 
New  Hampshire  held  that  an  agreement  to  use  legitimate 
means  to  procure  the  pardon  of  a  convict  is  neither  immoral 
nor  against  public  policy,  {d)  And  so  hold  the  court  of 
Georgia,  {e) 

In  Addison  on  Con.  (2d  Amer.  ed.)  96,  (5th  ed.)  892,  Norman 
V.  Cole  is  cited  as  deciding  that  an  agreement  is  void,  as 
against  public  policy,  if  made  "  to  pay  money  in  considera- 
tion that  a  party  will  use  his  private  interest  and  influence 
wdth  the  crown  to  obtain  the  pardon  of  a  criminal."  And 
in  Hatzfield  v.  Gulden,  7  Watts,  152,  it  was  decided  that  an 
engagement  to  procure  signatures  to  a  petition  for  the  pardon 
of  a  convict  sentenced  to  punishment  was  unlawful  and  could 
not  be  enforced  by  action.  See  also  Wildey  v.  Collier,  7 
Maryl.  273,  281.     McGill's  Adm'r  v.  Burnett,  7  J.  J.  Marsh. 

(a)  1  Russ.  on  Crimes,  (7th  Amer.  ed.)  142.  Commonwealths.  Cony,  2 
Mass.  524.     Commonwealth  v.  Bagley,  7  Pick.  279. 

(b)  3  Esp.  R.  253.     See  Wilkinson  v.  Kitchin,  1  Ld.  Raym.  89- 

(c)  Hob.  105,  Moore,  866  and  1  Brownl.  7. 
{(l)  Cliadwick  V.  Knox,  11  Foster,  226,  236. 

(e)  Formby  v.  Pryor,  15  Georgia,  258.  In  Shaw  on  Obligations,  64,  note 
(1)  the  case  of  Stewart  v.  Earl  of  Galloway  is  cited,  in  which  it  was  held  that, 
by  the  law  of  Scotland,  a  bond  granted  as  a  premium  to  solicit  pardon,  being 
turpis  causa,  would  not  support  an  action. 


230  *  LAW   OF   CONTRACTS. 

640.  Wood  V.  McCann,  6  Dana,  368,  and  remarks  of  Grier,  J. 
16  Howard,  334. 

All  contracts  to  procure  or  to  endeavor  to  procure  an  act  of 
a  legislature,  by  any  sinister  means,  or  by  any  personal  influ- 
ence on  individual  members,  are  immoral,  unlawful,  and  in- 
consistent with  sound  policy.  But  a  contract  to  act  openly  as 
attorney  for  a  petitioner,  in  preparing  documents  and  address- 
ing a  committee  of  a  legislature,  is  lawful,  (a) 

An  agreement  by  a  petitioner  to  the  House  of  Commons, 
against  the  return  of  a  member  thereof,  on  the  ground  of 
bribery,  not  to  proceed  with  the  petition,  in  consideration  of  a 
sum  of  money,  was  held  to  be  void  for  illegality,  {b)  And 
securities,  given  in  consideration  of  withdrawing  opposition  to 
a  bill  pending  in  parliament,  were  held  to  be  illegal  and  void, 
on  the  ground  of  public  policy,  (c) 

Marriage  brocage  contracts,  that  is,  agreements  to  pay  third 
persons  for  procuring  a  marriage,  by  means  of  their  exertions 
and  influence  with  one  of  the  parties  to  the  match,  are 
void,  (d)     So  of  contracts  in  restraint  of   marriage.       Thus, 

(a)  Marshall  v.  Baltimore  &  Ohio  Eailroad  Co.  16  Howard,  314.  Bryan 
V.  Reynolds,  5  Wis.  200.  Harris  v.  Roof,  10  Barb.  489.  Rose  v.  Truax,  21 
ib.  361.  Wood  V.  McCann,  6  Dana,  366.  Clippinger  v.  Hepbaugh,  5  Watts 
&  Serg.  315.  Frost  v.  Inhabitants  of  Belmont,  6  Allen,  152.  Sedgwick  v. 
Stanton,  4  Kernan,  289.  And  see  Fuller  v.  Dame,  18  Pick.  472.  Pingry  v. 
Washburn,  1  Aik.  264.  An  agreement  to  use  one's  influence  in  favor  of  a 
candidate  for  office  is  illegal.  Nichols?;.  Mudgett,  32  Verm.  546.  See  also 
Meacham  v.  Dow,  32  Verm.  721.  2  Kent  Com.  (11th  ed.)  609,  610  and 
notes. 

(b)  Coppocku.  Bower,  4  Mees.  &  Welsh.  361  and  1  Horn  &  Hurlst.  340. 
Lord  Abinger  said  the  petition  was  "  a  proceeding  instituted  not  for  the 
benefit  of  individuals,  but  of  the  public  ;  and  the  only  interest  in  it,  which  the 
law  recognizes,  is  that  of  the  public.  I  agree  that  if  the  person  who  prefers 
that  petition  finds  in  the  progress  of  the  inquiry,  that  he  has  no  chance  of  suc- 
cess, be  is  at  liberty  to  abandon  it  at  any  time.  But  I  do  not  agree  that  he 
may  take  money  for  so  doing,  as  a  means  and  with  the  effect  of  depriving  the 
public  of  the  benefit  which  would  result  from  the  investigation.  It  seems  to 
me  to  be  as  unlawful  so  to  do,  as  it  would  be  to  take  money  to  stop  a  prosecu- 
tion for  a  crime." 

(c)  Vauxhall  Bridge  Co.  v.  Earl  Spencer,  2  Madd.  356. 

(d)  Hall  V.  Potter,  Show.  P.  C.  76  and  3  Lev.  411.  Reeve  Dom.  Rel. 
419. 


UNLAWFUL.  231 

an  agreement  between  a  man  and  a  woman  that  he  would 
pay  her  .£1000,  if  he  married  any  other  person  except  herself, 
was  held  to  be  void  ;  the  agreement  not  being  to  marry  her, 
and  she  not  agreeing  to  marry  him  ;  so  that  he  was  restrained 
from  marrying  at  all,  if  she  should  refuse  to  marry  him.  (a) 
The  decisions  on  this  subject  rest  on  the  ground,  that  though 
the  law  does  not  oblige  any  one  to  marry,  yet  that  marriage 
is  a  moral  and  political  duty,  and  that  an  agi-eement  "  to 
omit  moral  duties,  which,  for  the  exercise  of  our  virtues,  are 
left  to  our  own  free  choice,"  is  not  the  proper  subject  matter 
of  an  action.  "  Whatsoever  a  man  may  lawfully  forbear,  that 
he  may  oblige  himself  against;  except  when  a  third  person  is 
wronged,  or  the  public  is  prejudiced  by  it."  (b)  A  bond  from  a 
widow  not  to  marry  again  was  decreed  to  be  delivered  up, 
although  there  was  a  counter-bond  to  pay  a  sum  of  money 
if  she  did  not.  (c)  A  wager  between  two  persons,  that  one 
of  them  will  not  marry  within  six  years,  is  void,  unless  it  be 
shown  that  such  temporary  restraint  is  proper  and  prudent  in 
the  particular  case,  [d) 

Conditions,  which  restrain  marriage  generally,  are  void,  if 
annexed  to  devises  or  legacies.  But  a  condition  which  re- 
strains marriage  as  to  time,  &c.,  or  which  requires  consent  of 
parents,  trustees,  &c.,  is  good.  Such  conditions  are  regarded 
as  allowable  regulations,  not  prohibitions,  of  marriage,  and  as 
proper  exertions  of  the  liberty  of  disposing  of  property  accord- 
ing to  the  owner's  pleasure ;  which  liberty  is  as  much  favored 
by  the  law,  as  the  liberty  of  marriage.  In  both  cases  such  re- 
strictions only  are  permitted,  as  are  deemed  to  be  of  public 
utility. 

But  devises  and  legacies  on  condition  that  the  devisee  or 
legatee  does  not  marry,  or  on  condition  of  their  being  en- 
joyed so  long  only  as  the  devisee  or  legatee  remains  single,  are 
treated  as  unconditional  devises  and  bequests.  The  condition 
is  only  in  terrorem,  and  is  inoperative.     The  party  does  not 

(a)  Low  V.  Peers,  Wilmot,  364  and  4  Bur.  2225.  See  also  Cock  v.  Rich- 
ards, 10  Ves.  429.     Sterling  v.  Sinnickson,  2  Southard,  756. 

{b)  Wilmot,  377.  (c)  Baker  v.  White,  2  Vernon,  215. 

((/)  Hartley  v.  Rice,  10  East,  22. 


232  LAW   OP   CONTRACTS. 

forfeit  the  bequest  by  marrying,  unless  it  be  limited  over  by 
the  testator,  (a)  This  distinction,  however,  does  not  hold  in 
cases  of  a  condition  precedent ;  as  a  legacy  to  be  paid  to  A., 
on  condition  of  his  marrying  B.,  or  marrying  C,  with  the  con- 
sent of  the  executor,  or  other  person  named.  (6) 

In  favor  of  free  and  unconstrained  marriages,  very  strict 
rules  are  applied  to  the  limitation  of  legacies,  and  very  liberal 
rules  to  the  construction  of  consent  to  marriages  by  guardians, 
trustees,  &c.  (c) 

The  rule  of  the  civil  law  is,  matrimonium  debd  esse  liherum ; 
and  all  conditions,  whether  precedent  or  subsequent,  annexed 
to  gifts,  bequests,  &c.,  are  void,  if  their  tendency  or  design  be 
to  restrain  the  liberty  of  marriage,  [d) 

Contracts  in  general  restraint  of  trade  are  against  sound 
policy. 

The  distinction  is  well  established  between  agreements  that 
are  intended  for  a  general  restraint  of  trade,  and  those  which 
stipulate  only  for  a  particular  restraint.  All  agreements  not 
to  exercise  a  particular  trade  or  profession  at  any  place  are 
void,  whether  the  agreement  be  by  parol  or  by  specialty. 
And  it  is  immaterial  whether  it  be  the  trade  or  pursuit  which 
the  party  usually  follows,  or  any  trade  or  pursuit,  that  he  en- 
gages not  to  pursue.  It  is  also  immaterial  whether  the  agree- 
ment is  for  the  life  of  the  party,  or  for  a  fixed  and  definite 
time.  All  such  agreements  are  void,  although  made  upon  a 
valuable  consideration  ;  and  they  are  denominated  agreements 
for  a  general,  or  total,  restraint  of  trade.  But  agreements  not 
to  exercise  a  trade  in  a  particular  place,  or  to  trade  with  par- 
ticular persons,  are  denominated  agreements  for  a  particular, 
or  partial,  restraint  of  trade.  And  such  agreements  are  valid, 
if  made  on  a  reasonable   consideration,  but  invalid,  if  made 

(a)  1  Roper  on  Legacies,  c.  xiii.  Keily  v.  Monck,  3  Ridgeway  P.  C.  205. 
Parsons  u.  Winslow,  6  Mass.  169. 

(b)  Harvy  v.  Aston,  Comyns's  Rep.  726  and  AVilles,  83.  Long  v.  Dennis, 
4  Bur.  2052. 

(e)  See  Willes,  99,  note  (a.) 

(rf)  See  Comyns's  Rep.  734-738.  2  White  &  Tudor's  I-ead.  Cas.  in  Eq. 
(3d  Amer.  cd.)  390  ^  seq. 


UNLAWFUL.  238 

without  such  consideration,  though  they  may  be  by  bond  or 
other  specialty.  It  is  generally  said  that  an  agreement  of  this 
kind  is  the  only  exception  to  the  rule  that  a  contract  under 
seal  imports  a  consideration  which  a  party  is  not  permitted  to 
deny.  It  might,  perhaps,  be  as  properly  said,  that  this  is  the 
only  case  in  which  a  contract  by  specialty  is  unlawful  and 
void  merely  because  it  is  without  actual  consideration. 

In  this  class  of  cases,  it  is  held  that  a  consideration  must 
appear  on  the  face  of  the  agreement,  and  that  a  declaration 
on  a  bond  that  sets  forth  no  consideration  is  bad  on  demur- 
rer, {a)  But  if  a  declaration  avers  that  the  defendant,  for  the 
considerations  mentioned  in  a  certain  deed,  covenanted  not  to 
exercise  a  trade  within  certain  limits,  without  stating  what 
those  considerations  were,  and  the  defendant  neither  craves 
oyer  of  the  deed,  nor  demurs  to  the  declaration,  the  court  will 
presume  that  the  deed  disclosed  a  sufficient  legal  considera- 
tion, (b) 

Courts  do  not  inquire  whether  the  consideration  of  such  a 
contract  is  equal  in  value  to  the  restraint  agreed  upon.  "  It  is 
enough,"  said  Tindal,  C.  J.  "  that  there  actually  is  a  considera- 
tion for  the  bargain,  and  that  such  consideration  is  a  legal 
consideration,  and  of  some  value."  (c)  In  Bragg  v.  Tan- 
ner, {d)  the  sum  of  ten  shillings  was  held  to  be  a  legal  con- 
sideration for  an  agreement  not  to  keep  a  draper's  shop  in 
Newgate  Market.  And  one  dollar  was  held  to  be  a  legal 
consideration  for  a  covenant  not  to  run  a  stage-coach  between 
Providence  and  Boston,  in  opposition  to  the  plaintiff,  (e)  But 
courts  will  inquire  and  decide  whether  the  actual  consideration 

(a)  Ilutton  V.  Parker,  7  Dowl.  P.  C.  739.  And  see  Mallan  v.  May,  11 
Mees.  &  Welsh.  665,  and  the  ancient  decisions  there  cited  by  Baron  Parke. 
1  P.  W.  182.     3  y.  &  Jerv.  330.     2  Ohio  State  R.  519. 

(6)   Homer  v.  Ashford,  11  Moore,  91  and  3  Bing.  322. 

(c)  Sainter  v.  Ferguson,  7  C.  B.  727,  728,  730.  Hitchcock  v.  Coker,  2 
Ear.  &  WoU.  464,  6  Ad.  &  El.  438,  457  and  1  Nev.  &  P.  796.  In  this  last 
case,  the  judgment  of  the  King's  Bench  was  reversed,  and  it  was  decided 
that  an  agreement  was  not  unreasonable  nor  oppressive,  by  reason  of  its  not 
being  limited  to  the  life  of  the  promisee  nor  to  the  time  during  which  he  should 
carry  on  business. 

(d)  Cited  by  Montague,  C.  J.,  in  Cro.  Jac.  597. 

(e)  Pierce  v.  Fuller,  8  Mass.  223.    And  see  Hearn  v.  Griffin,  2  Chit.  R.  407. 


234  LAW   OF   CONTRACTS. 

is  legally  such  as  will  sustain  the  agreement.  Whether  an 
agreement  of  this  kind  is  reasonable  and  valid  is  to  be  decided, 
as  said  by  Tindal,  C.  J.,  7  Bing.  743,  "  by  considering  whether 
the  conti'act  is  such  only  as  to  afford  a  fair  protection  to  the 
interests  of  the  party  in  favor  of  whom  it  is  given,  and  not  so 
large  as  to  interfere  with  the  interests  of  the  public.  What- 
ever restraint  is  larger  than  the  necessary  protection  of  the 
party  can  be  of  no  benefit  to  either  ;  it  can  only  be  oppressive, 
and  if  oppressive,  it  is,  in  the  eye  of  the   law,  unreasonable." 

And  a  bond  given  by  a  dentist,  that  he  would  not  practise 
within  the  distance  of  one  hundred  miles  from  the  city  of 
York,  where  the  obligee  resided,  in  consideration  of  receiving 
instructions,  and  a  salary  determinable  at  three  months' 
notice,  was  held  to  be  unreasonable  and  void,  (a)  And  an 
agreement  not  to  carry  on  the  business  of  manufacturing  and 
selling  shoe-cutters  "  within  the  Commonwealth  of  Massachu- 
setts" was  decided  to  be  void.  (6)  As  to  the  limits  within 
which  a  party  may  reasonably  restrain  himself  from  exercis- 
ing his  business,  see  11  Ohio  State  R.  357,  3  Beavan,  383  and 
the  cases  collected  and  discussed  in  Tallis  v.  Tallis,  1  El.  & 
Bl.  391. 

Where  the  stipulations  in  a  contract  of  this  kind  are  divisi- 
ble, and  a  part  imposes  reasonable  and  part  unreasonable  re- 
straints, effect  will  be  given  to  the  former,  and  not  to  the 
latter,  (c) 

(a)  Horner  v.  Graves,  5  Moore  &  Payne,  768  and  7  Bing.  735.  This  case, 
says  Lord  Uenman,  in  Archer  v.  Marsh,  6  Ad.  &  El.  967,  968,  2  Nev.  &  P. 
568  and  Willm.  Woll.  &  Dav.  644,  "  appears  to  be  overruled  by  the  late  de- 
cision in  error,"  reversing  the  judgment  of  the  King's  Bench  in  Hitchcock  v. 
Coker.  See  Young  v.  Tinimins,  1  Tyrwh.  226  and  1  Crompt.  &  J.  331. 
Mallan  v.  May,  11  Mees.  &  Welsh.  653.  The  first  of  these  cases  was  dis- 
tinguished from  that  of  Bunn  v.  Guy,  4  East,  190,  where  an  attorney's  agree- 
ment not  to  practise  "within  London  and  one  hundred  and  fifty  miles  from 
thence  "  was  held  valid.  Tindal,  C.  J.,  said  that  an  attorney's  business,  which 
may  be  carried  on  by  correspondence  and  agents,  required  a  limit  of  much 
larger  range  than  the  business  of  a  dentist,  which  requires  his  personal  pres- 
ence and  that  of  his  patients  togetlier  at  the  same  place. 

(fc)  Taylor  v.  Blanchard,  13  Allen,  .  See  Ward  v.  Byrne,  5  Mees.  & 
Welsh.  548. 

(c)  Chesman  v.  Nainby,  2  Strange,  739  and  2  Ld.  Raym.  1456.      Mallan 


UNLAWFUL.  235 

In  Alger  v.  Thacher,  19  Pick.  51,  a  bond  in  which  the 
obligor  engaged  not,  "  at  any  time  "  thereafter,  to  carry  on  or 
use  the  art  or  occupation  of  an  iron  founder  or  the  business 
of  founding  or  casting  iron,  was  held  to  be  void,  as  it  pur- 
ported to  exclude  the  obligor,  everywhere,  and  at  all  times, 
from  a  participation  in  the  trade  or  business  referred  to.  In 
Wallis  V.  Day,  Murph.  &  Hurlst.  22  and  2  Mees.  &  Welsh. 
273,  a  covenant  to  serve  the  obligees  during  the  covenantor's 
life  as  an  assistant  in  the  trade  of  a  carrier,  and  not  other- 
wise to  exercise  that  trade,  was  held  not  to  be  void,  inasmuch 
as  he  was  not  absolutely  restrained  from  carrying  on  the 
trade,  but  only  from  carrying  it  on  any  other  way  than  as  an 
assistant  of  the  obligees.  Lord  Abinger  said  that  there  was 
no  authority  that  made  illegal  the  contract  to  serve  for  life. 
"  Suppose,"  said  he,  "  a  man  engaged  in  trade  is  desirous, 
when  old  age  approaches,  of  selling  the  good  will  of  his  busi- 
ness, why  may  he  not  bind  himself  to  enter  into  the  service 
of  another,  and  to  trade  no  more  on  his  own  account.  So 
long  as  he  is  able,  he  is  bound  to  render  his  services;  and 
it  cannot  be  said  to  be  a  contract  in  absolute  restraint  of 
trade,  when  he  contracts  to  serve  another,  for  his  life,  in  the 
same  trade."  And  he  cited  Wickens  v.  Evans,  3  Y.  &  Jerv. 
318. 

The  leading  case,  on  this  subject  of  restraint  of  trade,  is 
Mitchel  V.  Reynolds,  1  P.  W.  181,  which  was  several  times 
argued,  and  in  which  Chief  Justice  Parker,  of  fhe  King's 
Bench,  elaborately  discussed  the  doctrine  and  the  prior  decis- 
ions, and  "  delivered  the  resolution  of  the  court "  in  an  opin- 
ion that  has  ever  since  been  regarded  as  a  guiding  authority, 
as  well  in  this  country  as  in  England,  (a)     In  that  case,  it  was 

V.  May,  11  Mees.   &  Welsh.   653.      Lange  v.  AVerk,   2  Ohio  State   K.  519. 
Alcock  V.  Giberton,  5  Duer,  76.     Beard  v.  Dennis,  6  Ind.  200. 

(a)  The  following  are  American  cases,  the  particulars  of  which  are  not 
hereafter  stated,  but  which  conform,  in  principle,  to  Mitchel  r.  Reynolds,  and 
to  other  English  cases.  Pike  v.  Thomas,  4  Bibb,  486.  Kellogg  v.  Larkin,  3 
Chand.  (Wis.)  133.  Nobles  v.  Bates,  7  Cowen,  307.  Chappel  ».  Brockway, 
21  "NVend.  157.  Van  Marter  v.  Babcock,  23  Barb.  633.  Bowser  v.  Bliss,  7 
Blackf.  344.  Gilman  v.  Dwight,  13  Gray,  356.  Palmer  v.  Stebbins,  3  Pick. 
148.     Stearns  v.  Barrett,  1  ib.  443.     Pierce  v.  Woodward,  6  ib.  206. 


236  LAW   OP   CONTRACTS. 

decided  that  an  assignment  of  a  lease  of  a  messuage  and 
bakehouse  for  the  term  of  five  years,  was  a  legal  considera- 
tion for  a  bond,  by  the  assignee,  engaging  not  to  exercise  his 
trade  of  a  baker  within  the  parish  where  the  bakehouse  was 
situate,  during  the  said  term. 

This  case  was  followed  by  Chesraan  v.  Nainby,  2  Strange, 
739  and  2  Ld.  Raym.  1456,  where  a  shopkeeper  took  a 
servant  upon  wages,  in  the  business  of  a  linen  draper,  which 
the  servant  was  expected  to  learn  and  "  become  a  perfect  and 
knowing  person  in  the  said  trade  and  mystery."  He  gave  to 
the  draper  a  bond  of  XlOO,  not  to  set  up  or  exercise  said  trade 
within  half  a  mile  of  the  draper's  house.  This  contract 
was  held  to  be  valid ;  as  it  appeared  that  it  was  a  part  of  the 
draper's  inducement  to  take  the  servant  into  his  employ,  and 
that  £100  was  the  sum  which  the  draper  might  reasonably 
expect  to  receive  from  an  apprentice  to  the  trade.  So  of  a 
bond,  on  similar  consideration,  wherein  the  obligor  engaged 
not  to  exercise  his  trade  within  the  city  and  liberties  of  West- 
minster, (a)  So  of  a  bond,  not  to  practice  as  surgeon,  &c.,  on 
the  obligor's  own  account,  for  fourteen  years,  in  consideration 
that  the  obligee  had  taken  him  as  an  assistant  in  the  business 
of  surgeon,  &c.,  "  for  so  long  a  time  as  it  should  please  the 
obligee."  The  being  admitted  as  an  assistant  of  an  estab- 
lished practitioner,  with  a  view  to  the  credit  to  be  derived  from 
that  situation,  was  deemed  a  reasonable  consideration  for  the 
bond,  (b)  So  also  of  a  sealed  contract,  on  a  proper  considera- 
tion, not  to  carry  on  the  business  of  a  rope- maker  during  life, 
except  on  government  contracts,  and  for  such  of  the  party's 
friends,  as  the  obligee  should  refuse  to  supply  on  credit,  (c) 
An  agreement  on  a  legal  consideration,  not  to  be  interested, 
directly  or  indirectly,  in  any  voyage  to  the  northwest  coast  of 
America,  or  in  any  traffic  with  the  natives  of  that  coast,  for 
seven  years,  is  valid ;  and  it  is  a  breach  of  such  agreement 

(«)  Clorke  V.  Comer,  Cunningham's  Rep.  51,7  Mod.  230  and  Rep.  Temp. 
Hardw.  53. 

(b)  Davis  V.  Mason,  5  T.  R.  118,  and  see  Hay  ward  v.  Young,  2  Chit.  R. 
407. 

(c)  Gale  V.  Reed,  8  East,  80. 


UNLAWFUL.  237 

to  own  and  fit  out  a  vessel  for  such  voyage,  though  the  party 
divest  himself  of  all  interest  in  the  vessel  and  cargo  before  the 
departure  of  the  vessel  on  her  voyage,  (a)  A  covenant  not 
to  carry  on  nor  assist  in  carrying  on  the  sale  of  certain  de- 
scribed goods,  on  certain  premises,  or  within  two  miles  thereof, 
was  held  to  be  broken  by  the  covenantor's  supplying  such 
goods,  from  a  place  beyond  the  prescribed  limit,  to  persons  re- 
siding within  that  limit,  at  their  solicitation,  (b)  A  bond  not 
to  engage  in  the  business  of  iron  casting  within  certain  limits, 
is  broken  by  the  obligor's  becoming  a  stockholder  in  a  corpo- 
ration carrying  on  that  business  within  those  limits,  or  by 
being  employed  by  such  corporation  in  carrying  on  their  busi- 
ness, (c) 

Monopolies  are  odious  and  generally  contrary  to  the  com- 
mon law.  They  are  said  to  be  contrary  to  Magna  Charta. 
A  grant,  however,  of  the  sole  use  of  a  newly  invented  art  is 
held  to  be  good,  being  indulged  for  the  encouragement  of 
ingenuity.  By  the  English  statute  of  James  I.,  and  by  the 
patent  laws  of  the  United  States,  such  grants  are  limited  to  a 
few  years.  Agreements,  therefore,  concerning  the  disposition 
and  use  of  patented  machines,  &c.,  though  in  restraint  of 
trade,  are  not  for  that  reason  void.  And  a  bond  or  other 
specialty,  by  which  a  patentee  should  engage  not  to  use  his 
machine  could  not  be  avoided  for  want  of  consideration.  In- 
deed a  transfer  of  his  right,  per  se  renders  him  legally  liable  to 
damages,  if  he  afterwards  uses  the  invention.  That  he  may 
make  such  transfer,  without  consideration,  if  he  please  to  give 
away  his  right,  would  not  seem  to  admit  of  doubt.  Secrets 
of  art,  not  patented,  are  not  within  the  scope  of  the  law 
against  restraint  of  trade.  Thus,  it  has  been  decided  that  a 
trader  may  sell  a  secret  in  his  trade,  and  restrain  himself,  per- 
sonally, from  the  use  of  it.  {d) 

(a)  Perkins  v.  Lyman,  9  Mass.  522. 

(6)  Brampton  v.  Beddoes,  13  C.  B.  N.  S.  538,  See  also  Turner  v.  Evans, 
2  El.  &  Bl.  512.     Duffy  v.  Shockey,  11  Ind.  70. 

(c)  Whitney  v.  Slayton,  40  Maine,  224.    And  see  51  ib.  146. 

Id)  Bryson  i'.  Whitehead,  1  Sim.  &  Stu.  74.  Vickery  v.  Welch,  19  Pick. 
523.     See  also  Jones  v.  Lees,  1  Hurlst.  &  Norm.  Ib9. 


238  LAW   OF   CONTRACTS. 

A  post  oh'dt  contract,  that  is,  an  agreement,  on  the  receipt 
of  money,  to  pay  a  larger  sum  than  is  received  by  the  prom- 
isor, and  the  legal  rate  of  interest,  on  the  death  of  a  person  on 
whom  the  promisor  has  some  expectation,  if  the  promisor  be 
then  alive,  is  void,  if  advantage  be  taken  of  his  necessity  to 
induce  him  to  make  such  agreement,  and  he  will  be  relieved 
in  chancery  ;  but  it  is  valid,  if  made  on  terms  in  which  the 
stipulated  payment  is  not  more  than  a  just  indemnity  for  the 
hazard.  And  there  are  data  on  which  it  can  be  ascertained 
whether  this  kind  of  contract  is  reasonable  or  unreasonable; 
for  the  lives  of  the  promisor  and  of  the  person  on  whose  death 
payment  is  to  be  made,  are  subject  to  valuation  on  principles 
and  calculations  established  in  all  life-insurance  offices,  {a) 
In  Boynton  v.  Hubbard  {h)  a  covenant  made  by  an  heir  to 
convey,  on  the  death  of  his  ancestor,  if  he  should  survive  him, 
a  certain  undivided  part  of  what  should  come  to  him  by  de- 
scent, was  held  to  be  void  at  law  as  well  as  in  equity,  being 
a  fraud  on  the  ancestor  and  productive  of  public  mischief. 
Though  this  was  not  strictly  a  post  obiit  contract,  yet  it  was 
held  to  fall  under  the  principle  of  the  cases,  which  are  usually 
litigated  in  chancery,  of  heirs  dealing  with  their  expectancies. 
Parsons,  C.  J.,  said,  ''  in  unconscionable  post  obiit  contracts, 
courts  of  law  may,  when  they  appear,  in  a  suit  commenced 
on  them,  to  have  been  against  conscience,  give  relief  by  direct- 
ing a  recovery  of  so  much  money  only  as  shall  be  equal  to 
the  principal  received  and  the  interest."     See  1  Atk.  347. 

All  wagers  are  void  that  are  contrary  to  public  policy.  As 
on  the  question  of  war  or  peace  ;  on  the  event  of  an  elec- 
tion ;  (c)  on  the  life  of  a  foreign  potentate  whose  country  is 

(a)  See  Gowland  r.  DeFaria,  1 7  Ves.  20,  and  remarks  on  that  case  in  7 
Clark  &  Fin.  458,  by  Lord  Cottenham.  Newland  on  Con.  c.  xxix.  Reeve 
Dom.  Rel.  419.  2  Powell  on  Con.  187  ^  seq.  Earl  of  Chesterfield  v. 
Jansen,  1  Wils.  286.  Baugh  v.  Price,  ib.  320.  1  Story  on  Eq.  §§  342  ^  seq. 
8  Pick.  480.     3  Met.  121. 

(h)   7  Mass.  112. 

(c)  3  Stark.  Ev.  (4th  Amer.  ed.)  1656.  Rust  v.  Gott,  9  Cowen,  169. 
Yates  V.  Foot,  12  Johns.  1.  Stoddard  v.  Martin,  1  R.  I.  1.  Ball  v. 
Gilbert,    12  Met  397.      McKee  v.  Manice,   11   Cush.   357.      McAllister  v. 


UNLAWFUL.  239 

at  war  with  that  of  either  of  the  parties  to  the  wager  ;  (a)  or 
on  the  amount  of  any  branch  of  revenue,  {b) 

By  the  common  law  of  England,  wagers  respecting  indif- 
ferent matters  were  lawful;  but  the  common  law  on  this 
subject  has  not  been  adopted  in  New  Hampshire ;  Perkins 
V.  Eaton,  3  N.  Hamp.  155  ;  and  has  never  been  -supposed 
to  be  in  force  in  Massachusetts.  See  12  Met.  399.  By  an 
act  of  parliament,  (8  &  9  Vict.  c.  109,  §  18,)  all  contracts 
or  agreements,  by  way  of  gaming  or  wagering  are  now  made 
void.  See  Addison  on  Con.  (5th  ed.)  901.  Also  2  Smith 
Lead.  Cas.  (6th  Amer.  ed.)  340,  "  as  to  what  cases  amount  to 
wagers  within  the  meaning  of  this  act." 

In  Texas  and  California  all  wagers  are  recoverable  except 
such  as  are  prohibited  by  statute,  or  are  against  pubhc  policy, 
or  tend  to  affect  the  interest,  character,  or  feelings  of  third 
parties.  A  wager  on  a  horse-race  is  recoverable  in  those 
States,  (c)  And  the  courts  in  New  Jersey,  Delaware,  and  Illi- 
nois hold  that  wagers  on  indifferent  questions  are  not  pro- 
hibited in  those  States,  (d) 

It  is  against  the  policy  of  the  law  to  allow  seamen  to  re- 
cover on  a  promise  of  increased  wages  for  extra  work  done 
during  the  voyage  for  which  they  shipped,  (e)  or  a  witness  to 
recover  on  a  promise  of  being  paid  more  than  the  legal  fee 

Hoffman,  16  Serg.  &  R.  147.  Allen  v.  Hearn,  1  T.  R.  56.  Porter  v.  Saw- 
yer, 1  Harrington,  517.  Wheelers.  Spencer,  15  Conn.  28.  Wroth  v.  Johns, 
4  Har,  &  McHen.  284.  Murdock  v.  Kilbourn,  6  Wis.  468.  It  is  held  in  Illi- 
nois that  a  wager  there  on  the  result  of  a  Presidential  election  in  another 
State  is  not  unlawful.     Smith  v.  Smith,  21  Illinois,  244. 

(a)  Gilbert  v.  Sykes,  16  East,  150. 

(h)  Atherfold  v.  Beard,  2  T.  R.  610.  Shirley  v.  Sankey,  2  Bos.  &  Pul. 
130. 

(c)  Johnson  v.  Fall,  6  Cal.  359.  Kirkland  v.  Randon,  8  Texas,  10.  Bass 
v.  Peevey,  22  ib.  295. 

(d)  4  Zab.  576.     5  Harrington,  347.     3  Scammon,  529. 

(e)  Stllk  V.  Meyrick,  6  Esp.  R.  129  and  2  Campb.  317.  Harris  v.  Watson, 
Peake's  Cas.  72.  Harris  v.  Carter,  3  El.  &  Bl.  559.  Bartlett  v.  Wyman, 
14  Johns.  260.  White  v.  Wilson,  2  Bos.  &  Pul.  116.  Frazer  v.  Hatton,  2 
C.B.N.  S.  512. 


240  LAW   OF   CONTRACTS. 

for  his  attendance  a   court,  (a)     And  see  post.  244  as  to  prom- 
ises to  pay  officers  more  than  their  established  fees,  &c. 

Trading  with  subjects  of  an  enemy's  country,  ivithout  the  license 
of  the  constituted  authorities. 

"  The  law,"  says  Chancellor  Kent,  16  Johns.  483,  "  puts  the 
sting  of  disability  into  every  kind  of  voluntary  communica- 
tion and  contract  with  an  enemy,  which  is  made  without  the 
special  permission  of  the  government."  Hence,  a  policy  of  in- 
surance on  enemy's  property  is  void.  (5)  So  of  bills  of  ex- 
change, promissory  notes,  and  other  contracts,  (c) 

In  Antoine  v.  Morshead,  {d)  it  was  held  that  an  alien  enemy, 
a  Frenchman,  to  whom  a  bill  of  exchange  was  indorsed, 
drawn  by  one  English  prisoner  in  France,  in  favor  of  another, 
on  a  house  in  England  that  accepted  it,  might  maintain  an 
action  upon  it,  on  the  return  of  peace,  against  the  acceptors. 
Chambre,  J.,  said  this  was  not  a  contract  between  an  English 
subject  and  an  alien  enemy.  And  Kent,  Ch.  (16  Johns.  Rep. 
471)  says  the  case  had  nothing  to  do  with  voluntary  inter- 
course in  the  way  of  mercantile  negotiation  and  trade. 

Where  an  American  vessel,  pretending  to  be  a  neutral, 
went  into  Bermudas,  and  in  the  character  of  a  neutral  ob- 
tained credit  for  repairs,  during  war,  it  was  held  that  the 
owners  of  the  vessel  were  answerable,  on  the  restoration  of 
peace,  to  the  British  merchants  who  assisted  them  to  repair ; 
on  the  ground  that  the  plaintiffs  were  ignorant  of  the  national 
character  of  the  vessel,  and  dealt  upon  the  faith  that  they  were 
trading  with  a  neutral,  {e)  A  license  from  a  British  admiral, 
to  protect  a  ship  from  capture  on  a  particular  voyage,  during 
war  between  this  country  and  Great  Britain,  was  held  not  to 
be  a  lawful  consideration  for  a  promissory  note  given  to  the 

(a)  Willis  V.  Peckham,  1  Brod.  &  Bing.  515  and  4  Moore,  300.  See 
Sweany  v.  Hunter,  1  Murph.  181. 

(6)  See  the  cases  on  this  point,  1  Phillips  on  Insurance,  (3d  ed.)  §§  147 
5"  seq. 

(c)  7  Taunt.  449,  and  cases  in  a  note  to  the  American  edition. 

Id)   6  Taunt.  237. 

(e)  Musson  v.  Fales,  16  Mass.  332. 


,  UNLAWFUL.  241 

seller  by  the  buyer  of  the  license  (a)  A  copartnership  between 
subjects  of  different  governments  is  dissolved,  or  suspended, 
by  a  war  between  the  countries  of  which  the  copartners  are 
subjects,  (h)  A  license  from  the  government  legalizes  the 
contracts  of  its  subjects  with  foreign  enemies,  so  far  as  to  en- 
able them  to  enforce  such  contracts  in  the  courts  of  the  licens- 
ing governments,  and  to  protect  the  party  from  prize  law.  (c) 

Ransom  bills,  &c,,  form  an  exception  to  the  general  law  on 
this  subject,  as  stated  ante,  95. 

Contracts  to  obstruct  the  course  of  justice,  the  execution  of  legal 
process,  or  to  indemnify  officers  against  nonfeasance,  misfeas- 
ance, or  malfeasance,  in  their  official  business. 

Contracts  to  do  acts  of  this  kind,  which  are  punishable  as 
crimes,  have  already  been  mentioned. 

Nonfeasance  is  the  omission  of  an  act  which  the  party 
ought  to  do.  Misfeasance  is  the  improper  performance  of  an 
act  which  may  lawfully  be  done.  Malfeasance  is  the  doing 
of  an  an  act  which  ought  not  to  be  done  at  all.  (d) 

A  promise  by  a  friend  of  a  bankrupt  to  pay  such  sums  as 
the  bankrupt  is  charged  with  having  received  and  not  ac- 
counted for,  if  the  assignees  and  commissioners  will  forbear 
to  examine  him  respecting  those  sums,  is  void  for  illegality,  (e) 
So  of  a  promise  to  pay  money  in  consideration  that  the 
promisee  will  not  oppose  the  promisor's  discharge  under  an 
insolvent  law.  (/)  And  of  a  promise  by  a  third  person  to  pay 
part  of  an  insolvent's  debt,  in  order  to  obtain  his  creditor's 
signature  to  the  insolvent's  petition,  (g-)  And  of  a  promise 
by  a  turnpike  corporation  that  certain  persons  shall  be  ex- 
empted from  paying  toll  at  its  gates,  if  they  will  withdraw  their 

(a)  Patton  v.  Nicholson,  3  Wheat.  204.  A  different  decision  will  be  found 
in  13  Mass.  26. 

(b)  Seaman  c.  Waddington,  16  Johns.  510. 

(c)  See  Mr.  Wheaton's  note  to  Patton  v.  Nicholson,  3  "Wheat.  207. 

(d)  2  Instructor  Clericalis,  107.     1  Chit.   PI.  (6th  Amer.  ed.)  151. 

(e)  Nerot  v.  Wallace,  3  T.  R.  17.     Kaye  v.  Bolton,  6  ib.  134. 

(/)  Tuxbury  w.  Miller,  19  Johns.  311.     Waite  v.  Harper,   2  Johns.  386. 
Bruce  V.  Lee,  4  Johns.  410.     Goodwin  v.  Blake,  3  Monroe,  106. 
(g)  Yeomans  v.  Chatterton,  9  Johns.  295.  Pos^  271. 
16 


242  LAW   OP   CONTRACTS.  , 

opposition  to  a  legislative  act  respecting  the  alteration  of  the 
road,  (a)  And  of  a  promise  by  an  officer,  who  had  seized 
goods  on  an  ele(/it,  that  if  the  creditor  would  take  out  a  new 
elegit  and  deliver  it  to  him,  he  would  procure  the  goods  to  be 
found  by  an  inquisition,  and  would  deliver  them  to  such  per- 
son as  the  creditor  should  appoint ;  for  he  was  bound  to  return 
an  indifferent  jury,  (b)  So  of  an  agreement  with  an  officer 
to  permit  a  prisoner  to  escape,  (c)  So  of  an  agreement  to  in- 
demnify an  officer,  if  he  will  permit  an  escape,  (d)  And  of 
an  agreement  to  deliver  an  execution  debtor  to  an  officer  at  a 
future  day,  in  consideration  of  his  forbearing  to  arrest  the 
debtor  when  in  his  presence  and  power  ;  (e)  or  to  surrender  a 
prisoner  on  mesne  process,  or  pay  the  debt  and  cost,  in  con- 
sideration of  his  being  permitted  to  go  at  large  until  the  re- 
turn day  of  the  writ.  (/)  Otherwise,  if  the  undertaking  be 
to  the  plaintiff  in  the  suit,  (g)  If  the  undertaking  be  to  the 
officer,  he  must  pursue  the  statute  of  23  Hen.  VI.  and  take  a 
bail  bond  in  his  own  name,  (h)  In  Benskin  v.  French,  (i)  a 
promise  to  a  bailiff  to  deliver  to  him,  the  next  morning,  a 
prisoner  whom  he  had  arrested,  in  consideration  of  his  being 
permitted  to  remain  in  the  promisor's  house  during  the  night, 
was  held  to  be  valid ;  the  court  not  inferring  from  the  state- 
ment that  there  was  an  escape,  as  the  officer  also  might  have 
remained  in  the  house.  Whether  any  judgment  was  rendered 
in  this  case  is  made  a  question  in  T.  Jon.  139 ;  and  in  1  T. 
R.  422,  BuUer,  J.,  says  the  case  is  to  be  upheld  on  the  ground 
that  the  promise  was  "  made  on  the  plaintiff's  part,"  that  is, 

(a)  Pingry  v.  Washburn,  1  Aik.  264. 

(b)  Morris  v.  Chapman,  1  Freeman,  32,  Carter,  223  and  T.  Jon.  24. 

(c)  Featherston  v.  Hutchinson,  Cro.  Eliz.  199  and  3  Leon.  108.  Blithman 
V.  Martin,  2  Bulst.  213  and  Godb.  250. 

(rf)  Plowd.  60.  Iletley,  175.  Yelv.  197.  7  Johns.  159.  7  Greenl.  113. 
2  Chip.  11. 

(e)  Denny  v.  Lincoln,  5  Mass.  385.     Fanshor  v.  Stout,  1  Soutliard,  319. 

(/)  Rogers  V.  Reeves,  1  T.  R.418. 

(g)  Milward  v.  Clerk,  Cro.  Eliz.  190.  Leech  v.  Davys,  Aleyn,  58.  Hill  v. 
Carter,  2  Mod.  304. 

(h)  Fuller  r.  Prest,  7  T.  R.  110. 

(i)   1  Sid.  132,  1  Keb.  483  and  1  Lev.  98. 


UNLAWFUL.  243 

made  to  the  bailiff  in  behalf  of  the  plaintiff,  and  thus  ranging 
with  the  cases  before  cited  from  Cro.  Eliz.,  Aleyn,  and  2  Mod. 
From  the  report  of  this  case  by  Levinz,  it  seems  that  the  ac- 
tion was  brought  by  the  original  plaintiff,  declaring  on  a  prom- 
ise to  the  bailiff  ex  parte  quoerentis.  And  so  the  matter  is 
stated  in  T.  Jon.  139. 

By  the  statute  of  23  Hen.  VI.  c.  9,  officers  are  prohibited  to 
take  any  obligation  of  a  prisoner  who  is  entitled  to  be  bailed, 
except  to  themselves,  and  in  the  name  of  their  office ;  and  all 
other  obligations  taken  upon  the  enlargement  of  prisoners,  or 
by  color  of  office,  are  declared  to  be  void.  In  most  particu- 
lars, this  statute  is  merely  in  affirmance  of  the  common  law, 
and  is  in  force  as  the  common  law  of  many  States  in  the 
Union.  All  bonds,  and  other  engagements,  taken  for  ease  and 
favor,  in  contravention  of  the  spirit  of  this  statute,  are  void.  («) 
This  statute  mentions  only  "  sheriffs,  under-sheriffs,  and  other 
officers  and  ministers."  It  has  been  held  that  the  sergeant 
at  arms  of  the  house  of  commons  is  not  an  officer,  within 
the  statute,  and  yet  that  a  bond  given  to  him  by  a  prisoner 
ordered  into  his  custody  by  the  house,  conditioned  to  ap- 
pear, &c.,  is  void  by  the  common  law,  being  for  ease  and 
favor,  (b)  So  of  a  bond,  taken  by  the  marshal  of  the  king's 
bench,  who  is  not  named  in  the  statute  ;  (c)  and  so,  it  would 
seem  of  a  bond  given  to  the  sergeant  at  arms  of  the  marches 
of  Wales,  (d) 

The  statute  mentions  obligations  only ;  yet  all  parol  under- 
takings are  equally  within  its  purview  and  spirit,  (e)  In  all 
cases  of  bonds  and  other  engagements  taken  of  prisoners  by 
officers,  the  material  question  is  whether  they  were  given  for 

(a)  See  Bac.  Ab.  Sheriff,  O.  Law  of  Arrests,  104,  105.  Dole  v.  Bull,  2 
Johns.  Cas.  239.  Richmond  v.  Roberts,  7  Johns.  319.  Strong  v.  Tompkins, 
8  Johns.  98. 

(b)  Norfolk's  case,  Hardr.  464. 

(c)  Bracebridge  v.  Vaughan,  Cro.  Eliz.  66. 
Id)  Johns  V.  Stratford,  Cro.  Car.  309. 

(e)  Beawfage's  case,  10  Co.  101.  Sedgworth  v.  Spicer,  4  East,  568.  Fuller 
V.  Prest,  7  T.  R.  110.     Strong  v.  Tompkins,  8  Johns.  98. 


244  LAW   OF    CONTRACTS. 

ease  and  favor,  (a)  Obligations  for  ease  and  favor  are  those 
only  which  are  given  to  purchase  an  indulgence  not  authorized 
by  law.  Hence  bonds  fey  the  debtor's  liberties,  under  statutes 
which  authorize  the  taking  of  bonds  of  that  kind  in  a  specified 
form,  are  not  void,  though  they  are  not  strictly  according  to 
such  form,  (b)  All  contracts  and  engagements  between  officers 
and  defendants  are  watched  with  a  jealous  eye  by  courts,  in 
order  to  prevent  oppression  undw  the  semblance  of  indulgence 
and  humanity,  (c) 

Since  the  statute  of  23  Hen.  VI.  (if  not  before)  all  promises 
to  officers,  to  induce  them  to  accept  bail,  are  void  ;  for  it  is 
their  duty  to  accept  sufficient  bail  when  offered  ;  and  a  con- 
tract to  accept  insufficient  bail  is  void,  as  it  is  a  contract  to 
violate  their  duty,  (d)  Wherever  it  is  the  duty  of  a  person  in 
a  public  trust  to  do  an  act,  and  he  exacts  a  promise  from  him 
for  whose  benefit  it  is  to  be  done,  to  compensate  him  for  the 
service,  the  consideration  is  unlawful  and  the  promise  void.(e) 
A  fortiori  is  a  promise  void,  when  made  for  the  payment  of 
more  than  the  sum  provided  by  law  for  the  performance  of  any 
official  duty.  (/)  Demanding  and  receiving  more  than  legal 
fees  is  an  indictable  offence;  maybe  punished  by  fine ;  sub- 
jects the  offender  to  a  qui  tarn  action  for  a  penalty  ;  and  is  a 
good  cause  of  action  for  reclaiming  the  excess  in  assumpsit 
for  money  had  and  received,  {g) 

Though  an  agreement  to  indemnify  an  officer  for  doing  an 
unlawful  act  is  void,  yet  a  bond  to  save  an  officer  harmless 

(a)  See  Lenthall  v.  Cooke,  1  Saund.  161,  and  notes  to  that  case.  Also  1 
Vent.  237.     2  Salk.  438.     Oke's  case,  1  Freeman,  375. 

(h)  Baker  v.  Haley,  5  Greenl.  240.     Burroughs  v.  Lewder,  8  Mass.  373. 

(c)  See  Reed  v.  Pruyn,  7  Johns.  430.  Sherman  v.  Boyce,  15  Johns.  443. 
Sugars  V.  Brinkworth,  4  Campb.  47. 

{(I)  Stotesbury  v.  Smith,  2  Bur.  924.     Highmore  on  Bail,  28. 

(e)  Bridge  v.  Cage,  Cro.  Jac.  103.  Callagan  v.  Hallett,  1  Caines,  104. 
Hatch  I'.  Mann,  15  Wend.  50.  Smith  v.  Whlldiu,  10  Barr,  39.  Stotesbury 
V.  Smith,  2  Bur.  926  and  1  W.  Bl.  204. 

(/)  Batho  V.  Salter,  Latch,  54  and  W.  Jon.  65.  Woodgate  v.  Knatchbull, 
2  T.  R.  148.  Lane  v.  Sewall,  1  Chit.  R.  175.  Dew  v.  Parsons,  ib,  295  and 
2  B.  &  Aid.  562.  Rea  v.  Smith,  2  Handy,  193.  Pool  v.  City  of  Boston,  5 
Cush.  219. 

{(j)  1  Hawk.  c.  27.     Jons  v.  Perchard,  2  Esp.  R.  507. 


UNLAWFUL.  245 

for  an  unlawful  act  already  done  is  valid,  (a)  The  considera- 
tion is  not  illegal,  and  the  seal  imports  a  sufficient  considera- 
tion, or  supersedes  the  necessity  of  any. 

When  goods  are  seized  by  an  officer  on  execution,  a  con- 
tract to  pay  the  debt,  in  consideration  of  his  releasing  them, 
is  not  unlawful.  This  is  entirely  different  from  a  promise  in 
consideration  of  suffering  a  prisoner  to  go  at  large.  (&)  And 
it  is  the  constant  practice  in'  Maine,  New  Hampshire,  and 
Massachusetts,  where  attachments  are  made  on  mesne  process, 
for  the  officer  to  deliver  the  property  attached  to  a  third  per- 
son, taking  his  promise  to  return  it,  or  to  pay  the  judgment 
which  the  plaintiff  may  recover,  or  an  agreed  sum,  if  he  fail 
to  return  it.  This  has  never  been  deemed  illegal,  and  such 
promises  have  often  been  enforced  by  action,  (c) 

A  bond,  taken  by  a  sheriff  from  his  deputy  and  sureties, 
engaging  to  indemnify  the  sheriff  against  all  misconduct  of 
the  deputy  for  which  the  sheriff  is  responsible,  is  not  illegal ; 
as  its  object  is  not  to  induce  illegal  acts  ;  {d)  nor  is  a  promise 
of  indemnity  to  a  sheriff  against  the  misconduct  of  a  bailiff 
appointed  at  the  promisor's  suggestion  or  request.  In  such 
cases,  the  act  of  the  bailiff  is  regarded  as  the  act  of  the  party 
soliciting  his  appointment ;  that  is,  the  plaintiff  in  the  original 
writ ;  and  the  court  will  not  allow  the  sheriff  to  be  troubled 
by  him  in  consequence  of  any  neghgence  or  misbehavior 
of  the  bailiff,  (e) 

In  all  cases  of  promises  to  indemnify  against  unlawful  acts, 
this  distinction  holds,  namely,  if  the  act,  directed  or  agreed  to 
be  done,  is  known,  at  the  time,  to  be  a  trespass  and  unlawful, 
the  promise  of  indemnity  is  unlawful  and  void ;  otherwise,  it 
is  a  good  and  valid  promise. 

This  class  of  cases  has  already  been  fully  considered.    Ante, 

(«)  Hackett  v.  Tilly,  Holt,  201,  11  Mod.  93  and  2  Ld.  Raym.  1207.  Fox 
V.  Tilly,  6  Mod.  225.  Given  v.  Driggs,  1  Caines,  450,  460.  Hall  v.  Huntoon, 
1 7  Verm.  244. 

(b)  Love's  case,  1  Salk.  28. 

(c)  14  Mass.  195.     16  ib.  8,  453,  464.     3  Greenl.  357.     7  N.  Hamp.  594. 

(d)  Norton  v.  SImmes,  Hob.  12.     Bac.  Ab.  Sheriff,  H.  2.     11  Mod.  93,  94. 

(e)  Dabridgecourt  v.  Smallbrooke,  Owen,  97  and  Cro.  Eliz.  178.  De- 
Moranda  v.  Dunkin,  4  T.  R.  11 9. 


246  LAW    OF    CONTRACTS. 

11-13.  Ignorance  of  the  moral  quality  of  actions,  or  of  the 
law  relating  to  offences,  will  not  excuse  a  breach  of  law,  nor 
render  legal  an  engagement  to  save  an  offender  harmless, 
in  consideration  of  his  committing  a  punishable  offence,  (a) 
Therefore  A.'s  license  to  B.  to  beat  him  is  void,  though  it  is 
tantamount  to  a  promise  not  to  seek  redress  for  the  injury ;  for 
the  beating  is  a  breach  of  the  peace,  and  indictable,  {b) 

All  contracts,  the  object  of  which  is  to  induce  an  omission 
of  duty,  are  unlawful  and  void,  no  less  than  those  which  are 
made  for  the  purpose  of  encouraging  the  commission  of  un- 
lawful acts,  (c) 

II.     CONTRACTS  WHICH  VIOLATE    THE  PROVISIONS  OF  A  STATUTE. 

Before  stating  the  principles  which  govern  the  main  subject 
of  this  division,  it  may  be  well  to  state  the  doctrine  respecting 
contracts  void  in  part  only,  and  the  alleged  difference,  as  to 
this  matter,  between  contracts  which  violate  statutes,  and 
those  which  violate  the  common  law. 

It  has  heretofore  been  mentioned  that  if  one  of  two  con- 
siderations of  a  promise  be  void  merely,  the  other  will  support 

(a)  See  1  Comyn  on  Con.  1st  ed.  31.  1  Powell  on  Con.  166.  Allen  v. 
Rescous,  2  Lev.  174. 

(b)  Matthew  v.  OUerton,  Bui.  N.  P.  16,  and  Comb.  218.  Stout  r.  Wren,  1 
Hawks,  420.  Logan  v.  Austin,  1  Stew.  476.  Qucere,  whether  an  action 
would  lie  for  a  blow  received  in  those  exercises  that  prepare  for  the  defence 
of  the  country,  or  in  mere  athletic  exercises,  where  the  necessary  conse- 
quences of  the  exercise  are  not  detrimental  to  the  party  ?  See  Keilw.  136,  a. 
3  Inst.  56.     1  Mod.  136.     2  Bishop  on  Crim.  Law,  §  592. 

In  the  Mirror,  c.  I.,  sect.  13,  is  this  passage  :  "  Of  misadventures  in  turna- 
ments  in  courts  and  lists,  king  Henry  the  2  ordained,  that  because  at  such 
duells  happen  many  mischances ;  that  each  of  them  take  an  oath  that  he 
beareth  no  deadly  hatred  against  the  other,  but  oncly  that  he  endeavoureth 
with  him  in  love  to  try  his  strength  in  those  common  places  of  lists  and  duells, 
that  he  might  the  better  know  how  to  defend  himselfe  against  his  enemies; 
and  therefore  such  mischances  are  not  supposed  felonj',  nor  the  coroners  have 
not  to  doe  with  such  mischances  which  happen  in  such  common  meetings 
where  there  is  no  intent  to  commit  any  felony."  See  1  Hale  P.  C.  472,  474. 
Foster's  Crown  Law,  259,  260. 

(c)  Goodalc  r.  Holridge,  2  Johns.  193.  Norton  v.  Syms,  Moore,  856. 
Greenwood  v.  Colcock,  2  Bay,  67.     Hodsdon  v.  Wilkius,  7  Greenl.  113. 


UNLAWFUL.  247 

the  promise  ;  but  that  if  one  of  two  considerations  be  unlawful, 
the  promise  is  void.  When,  however,  the  illegality  of  a  con- 
tract is  in  the  act  to  be  done,  and  not  in  the  consideration,  the 
law  is  different.  If,  for  a  legal  consideration,  a  party  under- 
takes to  do  two  or  more  acts,  and  part  of  them  are  unlawful, 
the  contract  is  good  for  so  much  as  is  lawful,  and  void  for  the 
residue.  Wherever  the  unlawful  part  of  a  contract  can  be 
separated  from  the  rest,  it  will  be  rejected,  and  the  remainder 
established.  This  cannot  be  done  when  one  of  two  or  more 
considerations  is  unlawful,  whether  the  promise  be  to  do  one 
lawful  act,  or  two  or  more  acts,  part  of  which  are  unlawful  ; 
because  the  whole  consideration  is  the  basis  of  the  whole 
promise.  The  parts  are  inseparable.  Otherwise,  there  would 
be  two  or  more  contracts,  instead  of  one.  But  where,  for  one 
or  more  lawful  considerations,  a  promise  is  made  to  perform 
a  legal  act  and  also  an  act  illegal,  there  is  no  difficulty  in  sus- 
taining and  enforcing  the  promise  pro  tarda;  for  so  far  the 
contract  has  all  the  properties  which  the  law  requires.  It  is 
"  an  agreement,  upon  sufficient  consideration,  to  do  a  legal 
act."  The  illegal  act  which  is  also  agreed  to  be  done,  may 
be  rejected  without  interference  with  the  other.  Therefore, 
says  Hutton,  J.,  {a)  "  at  the  common  law,  when  a  good  thing 
and  a  void  thing  are  put  together  in  one  self-same  grant,  the 
same  law  shall  make  such  a  construction,  that  the  grant  shall 
be  good  for  that  which  is  good,  and  void  for  that  which  is 
void."  By  "  void,"  in  this  passage,  is  meant  void  for  illegality, 
as  the  context  shows,  and  as  it  has  been  received  and  under- 
stood, {h)  So  if  any  part  of  the  condition  of  a  bond  be 
against  law,  it  is  void  for  that  part,  and  good  for  the  rest ;  or 
if  a  bond  be  given  for  the  performance  of  covenants  contained 
in  a  separate  instrument,  some  of  which  are  lawful  and  others 
unlawful,  (c)     So  of  parol  contracts. 

But  it  was  asserted,  until  it  became  a  maxim,  that  if  any 
part  of  an  agreement  be  contrary  to  a  statute,  the  whole  is 

(a)  Bishop  of  Chester  v.  Freeland,  Ley,  79. 

(&)  See  8  East,  236.     1  Johns.  362. 

(c)  Chamberlain  v.  Goldsmith,   2  Brownl.  282.     Xorton  v.   Syms,  Moore, 
856. 


248  LAW   OP   CONTRACTS. 

void,  (a)  This  distinction  seems  to  stand  on  no  sound  prin- 
ciple ;  and,  upon  examination,  will  not  be  found,  as  a  general 
rule,  to  be  supported  by  authority. 

The  first  case  on  the  point  is  believed  to  be  Lee  &  wife  v. 
Coleshill,  [h)  under  the  statute  of  5  Edw.  VI.  prohibiting  the 
sale  of  offices,  &c.  By  the  third  section  of  that  statute,  "  all 
such  bargains,  sales,  promises,  bonds,  agreements,  covenants 
and  assurances,"  are  declared  to  be  void,  (c)  According  to 
the  report  in  Croke,  Coleshill,  a  custom-house  officer,  made 
one  Smith  his  deputy,  and  covenanted  [inter  alia)  to  surrender 
his  old  patent  of  office  and  procure  a  new  one  to  Smith  and 
himself,  before  a  certain  day  ;  and  that  if  Smith  died  be- 
fore him,  he  would  pay  to  Smith's  executors  £300 ;  and  gave 
Smith  a  bond  to  perform  these  covenants.  Upon  a  suit  on 
this  bond,  by  the  executors  of  Smith,  it  was  held  that  the 
whole  was  void,  though  some  of  the  covenants  might  be  law- 
ful ;  "  otherwise,"  said  the  counsel,  "  all  the  meaning  of  the 
statute  should  be  defrauded  by  putting  in  la  lawful  covenant 
within  the  indenture."  Yet  the  counsel  further  said,  "  for  the 
good  covenants,  peradventure  an  action  of  covenant  would  lie, 
if  they  be  not  performed  ; "  that  is,  an  action  on  the  covenants, 
but  not  on  the  bond  given  to  secure  performance  of  them. 
The  case  is  reported  somewhat  differently  in  2  Anderson,  65, 
by  the  name  of  Smyth  v.  Colshill,  but  the  same  ground  of  de- 
cision is  taken. 

Afterwards,  the  distinction,  on  this  point,  between  the  com- 
mon law  and  a  statute,  was  asserted,  arguendo,  in  many  cases, 
as  a  general  principle,  [d)  Twisden,  J.,  and  Chief  Justice  Wil- 
mot  are  reported  to  have  ascribed  to  Lord  Hobart  the  dictum^ 
often  repeated  in  the  books,  that  "  a  statute  is  like  a  tyrant ; 
where  he  comes,  he  makes  all  void.  But  the  common  law  is 
like  a  nursing  father ;  it  makes  only  void  that  part  where  the 

(a)  1  Saund.  66,  note.     1  Powell  on  Con.  199. 

(6)  Cro.  Eliz.  529. 

(c)  See  Bac.  Ab.  Offices,  &c.  B. 

{d)  See  Pearson  v.  Humes,  Carter,  230.  Mosdel  v.  Middleton,  1  Vent 
237.  11  Mod.  94,  by  Powell,  J.  2  Wils.  351,  by  Wilmot,  C.  J.  3  Taunt. 
244,  by  Lawrence  J. 


UNLAWFUL.  249 

fault  is,  and  preserves  the  rest."  The  cases  in  which  this  dis- 
tinction is  laid  down  as  a  general  principle,  were  mostly  on 
bonds  taken  by  officers,  contrary  to  the  statute  of  23  Hen.  VI. ; 
and  it  was  tJiis  statute  Qhe  statute,  not  a  statute)  which  Lord 
Hobart  compared  to  a  tyrant.  "  I  have  heard  Lord  Hobart 
say,"  says  Twisden,  J.,  "  that  because  the  statute  would  make 
sure  work,  and  not  leave  it  to  exposition  what  bonds  should 
be  taken,  therefore  it  was  added  that  bonds  taken  in  any  other 
form  should  be  void;  for  said  he,  the  statute  is  like  a  tyrant," 
&c.  {a)  That  statute  prescribed  the  form  of  the  obligation 
which  an  officer  should  take  from  a  person  arrested,  and  ex- 
pressly made  "  any  obligation,  in  other  form,  void."  Hence 
it  is  said,  (b)  "  if  a  sheriff  will  take  a  bond  for  a  point  against 
that  law,  and  also  for  a  due  debt,  the  whole  bond  is  void  ;  for 
the  letter  of  the  statute  is  so ;  for  a  statute  is  a  strict  law ; 
but  the  common  law  doth  divide  according  to  common  reason, 
and  having  made  that  void  which  is  against  law,  lets  the  rest 
stand."  (c) 

To  the  case  of  Norton  v.  Simmes  (d)  may  be  traced  most 
of  the  dicta  in  the  books,  on  the  point  now  in  question.  In 
the  three  reports  of  that  case,  a  principle  is  advanced,  general 
in  its  terms  ;  but  it  is  in  reference  to  the  statute  of  Hen.  VI. ; 
.and  the  point  was  not  adjudged.  The  suit,  in  that  case  was 
on  a  bond  for  the  performance  of  several  covenants,  some  of 
which  were  void  by  the  common  law  ;  and  the  plaintiff  had 
judgment  for  damages  sustained  by  the  non-performance  of 
the  valid  covenants. 

The  compiler  of  Bacon's  Abridgment  (Sheriff,  H.  2.)  seems 
to  have  understood  the  distinction  as  existing  only  under  the 
statute  of  Henry  VL  and  other  statutes  (if  any)  in  which  a 
specific  form  of  obligation  is  prescribed,  and  all  other  forms 
forbidden ;  and  Lawrence,  J.,  in  8  East,  236,  237,  expressly 
asserts  the  same  ;  which  renders  it  remarkable  that  he  should 
afterwards,  in  3  Taunt.  244,  have  advanced  the  doctrine  as  a 
general  one. 

(a)  1  Mod.  35.  (&)  Hob.  14. 

(c)  See  Shep.  Touch.  374.     Plowd.  68. 

(d)  Hob.  12,  1  Brownl.  63  and  Moore,  856. 


250  LAW   OP   CONTRACTS. 

If  then  any  part  of  a  contract  is  valid,  it  will  avail  pro  tanto, 
though  another  part  of  it  may  be  prohibited  by  statute  ;  pro- 
vided the  statute  does  not  expressly,  or  by  necessary  implica- 
tion, render  the  whole  void  ;  and  provided  also,  that  the  sound 
part  can  be  separated  from  the  unsound.  As  to  the  possibility 
of  such  separation,  however,  there  is  no  difference  between 
contracts  against  the  common  law,  and  against  a  statute. 
Such  is  the  true  principle,  and  such,  it  will  be  found,  are  the 
modern  decisions. 

Thus,  if  in  a  deed  a  rector  or  vicar  grants  a  rent-charge  out 
of  his  benefice,  contrary  to  the  statute  of  13  Eliz.  c.  20,  and 
also  covenants  personally  to  pay  the  rent-charge,  he  is  liable 
on  his  covenants,  though  the  grant  is  void  for  illegality,  (a) 
So  a  bill  of  sale  of  a  ship,  by  way  of  mortgage,  though  void 
as  such,  for  want  of  a  recital  of  the  certificate  of  registry  re- 
quired by  statute  of  26  Geo.  III.,  may  be  good  as  a  covenant 
to  repay  the  money  borrowed  ;  such  covenant  being  contained 
in  the  same  instrument,  (b)  So  if  there  be  in  a  deed  one 
limitation  to  a  charitable  use,  and  therefore  void  by  statute  of 
9  Geo.  II.,  yet  other  limitations  in  the  same  deed,  which  are 
not  within  the  statute,  are  not  therefore  void,  (c)  The  case 
of  Greenwood  v.  Bishop  of  London  (d)  is  a  strong  authority 
to  the  same  point.  A  conveyance  of  an  advowson,  including 
the  next  presentation,  was  made  for  an  entire  sum,  and  was 
supported  for  the  advowson  only  ;  the  conveyance  of  the  next 
presentation  being  void  for  simony,  which  is  a  statute  offence. 
There  are  also  several  perfectly  analogous  cases  on  the  prop- 
erty tax  act  of  46  Geo.  III.  (e) 

It  appears,  from  these  cases,  that  when  the  invalid  part  of 
an  agreement  can  be  separated  from  the  valid,  the  latter  shall 
stand,  although  the  former  be  declared  void  by  statute.     And 

(o)  Mouys  V.  Leake,  8  T.  R.  411. 
(i)  Kerrison  v.  Cole,  8  East,  231. 

(c)  Doe  V.  Pitcher,  6  Taunt.  369. 

(d)  5  Taunt.  727.     See  also  Newman  v.  Newman,  4  M.  &  S.  G6. 

(e)  Wigg  6^.  Shuttleworth,  13  East,  87.  Gaskell  y.  King,  11  East,  165. 
Howe  V.  Syngc,  15  East,  440.  Tinkler  v.  Prentice,  4  Taunt.  549.  Fuller  v. 
Abbott,  ib.  105.     lleadshaw  v.  Balders,  ib.  5  7. 


UNLAWFUL. 


251 


it  may  be  inferred  that  a  case  like  that  of  Lee  &  wife  v.  Coles- 
hill,  (a)  would  now  be  differently  decided,  unless  (according  to 
what  would  seem  to  be  the  better  opinion)  the  lawful  cove- 
nant, in  that  case,  should  be  deemed  dependent  on  that  which 
was  unlawful,  and  so  the  void  part   inseparable    from    the 

sound,  (b) 

In  Crosley  v.  Arkwright  and  Denn  v.  Dolman,  (c)  under 
the  annuity  act  of  17  Geo.  III.,  it  was  held  that  the  want  of 
a  memorial  of  an  annuity  deed,  registered  according  to  the 
directions  of  the  statute,  avoided  the  whole  deed,  though 
there  were  parts  of  it  not  connected  with  the  annuity.  The 
court  held  themselves  bound  by  the  words  of  the  statute, 
which  declares  annuity  deeds,  of  which  a  memorial  is  not 
registered,  "void  to  all  intents  and  purposes  whatsoever." 
These  decisions  were  questioned  by  Mr.  Evans,  in  his  Notes 
to  the  Annuity  Act,  and  by  Mr.  Ellis  in  his  treatise  on  the  Law 
of  Debtor  and  Creditor,  p.  377,  note  (o).  By  the  subsequent 
decisions  in  analogous  cases  (already  cited)  the  part  of  the  deed 
which  related  to  the  annuity  would  alone  seem  to  be  within 
the  operation  of  the  statute.  "  The  judges,"  says  Chief  Justice 
Wilmot,  ''formerly  thought  an  act  of  parliament  might  be 
eluded,  if  they  did  not  make  the  whole  void,  if  part  was 
void."  (d) 

It  is  often  laid  down  in  the  books,  that  if  any  part  of  an 
agreement  is  void  by  the  statute  of  frauds,  &c.,  the  whole  is 
void.  An  examination  of  the  cases,  however,  will  show 
that  this  is  too  broadly  asserted,  and  that  the  true  doctrine 
does  not  rest  upon  any  distinction  between  agreements  void 
in  part  by  statute,  and  void  in  part  by  the  common  law.  The 
principle  of  the  decisions  under  the  statute  of  frauds,  &c.,  is 
the  same  as  in  the  other  cases  already  mentioned,  and  is  this ; 
to  wit,  if  the  part  of  the  agreement,  which  is  void  by  the 
statute,  is  so  involved  with  the  rest  of  the  agreement  (which, 

(a)  Cro.  Eliz.  529.     2  And.  55. 

(5)  See  Ley,  79.  Hob.  14  a,  note  (2)  by  Judge  Williams.  Bac.  Ab. 
Offices,  &c.,  F. 

(t)   2T.  R.  603.     5ib.641. 
(d)  2  Wils.  351. 


252  LAW   OP   CONTRACTS. 

if  standing  alone  would  be  valid,)  as  not  to  admit  of  separa- 
tion, the  whole  is  void  ;  otherwise  not. 

The  first  case  on  this  point  is  Lord  Lexington  v.  Clarke  & 
wife,  (a)  where  a  woman,  after  her  husband's  death,  in  con- 
sideration of  being  permitted  to  occupy  premises  which  were 
leased  to  her  husband,  promised  orally  to  pay  the  rent  which 
had  accrued  during  his  life,  as  well  as  the  rent  which  should 
subsequently  accrue  during  her  occupation.  The  court  held 
this  to  be  an  entire  agreement ;  and  the  promise,  as  to  one 
part,  being  void  by  the  statute  of  frauds,  &c.,  it  could  not 
stand  good  for  the  other  part.  In  Cooke  v.  Tombs,  (b)  the 
same  rule  was  applied  to  an  unwritten  agreement  for  the 
sale  of  real  and  personal  property;  to  wit,  houses,  docks, 
and  timber  for  ship-building.  On  the  authority  of  this  last 
case.  Chief  Baron  Macdonald  shortly  after  ruled  the  point 
in  the  same  way,  at  nisi  prius.  (c)  Three  years  afterwards, 
the  court  of  King's  Bench  decided  the  point  in  the  same  way, 
in  Chater  v.  Beckett,  (d)  Lord  Kenyon  said,  "  The  promise 
was  void  in  part  by  the  statute,  and  the  agreement  being  entire, 
the  plaintiff  cannot  separate  it,  and  recover  on  one  part  of  the 
agreement,  the  othei  being  void."  Grose,  J.,  said,  "  It  was  one 
indivisible  contract,  and  the  plaintiff  cannot  recover  on  any 
part."  The  same  was  also  held  in  Thomas  v.  Williams,  10 
Barn.  &  Cres.  664  and  5  Man.  &  Ryl.  625.  But  in  Wood 
V.  Benson,  2  Crompt.  &  J.  94  and  2  Tyrwh.  93,  Lord  Lynd- 
hurst  said  "  the  case  of  Thomas  v.  Williams  may,  as  appears  to 
me,  be  supported.  Part  of  the  contract,  in  that  case,  was  void 
by  the  statute  of  frauds.  The  declaration  stated  the  entire 
contract,  including  that  part  of  it  which  was  void,  and  there- 
fore the  contract,  as  stated  in  the  declaration,  was  not  proved. 
The  same  observation  applies  to  Lexington   v.   Clarke  and 

(a)  2  Vent.  223. 

(i)  2  Anstr.  420.  According  to  subsequent  decisions,  the  agreement  con- 
cerning the  personal  property  was  void  also,  under  the  statute.  But  as  it  was 
not  so  regarded  by  the  court,  the  case  supports  the  decision  in  Lexington  v. 
Clarke.     See  Roberts  on  St.  of  Frauds,  111,  note  (53). 

(c)  Lea  V.  Barber,  2  Anstr.  425,  note. 

(d)  7  T.  R.  201. 


UNLAWFUL.  253 

Chater  v.  Beckett ;  and  I  have  no  disposition  to  complain  of 
those  decisions ;  because,  in  none  of  those  cases  does  there 
appear  to  have  been  any  count  upon  which  the  plaintiff  could 
recover."  Baron  Bayley  said,  "  It  by  no  means  follows  that 
because  you  cannot  sustain  a  contract  in  the  whole,  you  can- 
not sustain  it  in  part,  provided  your  declaration  be  so  framed 
as  to  meet  the  proof  of  that  part  of  the  contract  which  is 
good."  In  that  case,  as  there  was  a  general  indebitatus  count 
for  goods  sold  and  delivered,  the  plaintiffs  recovered  for  that 
part  of  them,  the  sale  of  which  was  not  within  the  statute 
of  frauds,  though  the  sale  of  another  part  was  within  that 
statute.     And  such  is  now  the  prevailing  law.  (a) 

The  cases  of  Vaughan  v.  Hancock,  3*C.  B.  766,  Crawford 
V.  Morrell,  8  Johns.  253,  and  Noyes's  Ex'x  v.  Humphreys,  11 
Grattan,  636,  may  be  sustained  on  the  ground  that  the  dec- 
laration stated  an  entire  contract  only. 

The  established  doctrine  is  believed  now  to  be,  that  an 
agreement,  which  is  in  part  within  the  statute  of  frauds,  is 
valid  as  to  such  part  as  is  not  within  the  statute,  provided 
always  that  the  valid  part  can  be  separated  from  the  invalid, 
and  can  be  separately  enforced  without  injustice  to  the  prom- 
isor. Otherwise,  if  injustice  would  be  done,  by  allowing  part 
only  to  be  recoverable.  Thus,  where  a  party  in  Boston  orally 
contracted  for  goods  in  Philadelphia  beyond  the  value  allowed 
by  the  statute  of  frauds  to  be  thus  contracted  for,  and  also  con- 
tracted to  pay  for  the  transportation  thereof  to  Boston,  which 
contract  was  not  within  the  statute,  it  was  held  that  an  action 
could  not  be  supported  for  the  recovery  of  the  transportation. 
Irvine  v.  Stone,  6  Cush.  508.  So  in  Lea  v.  Barber,  2  Anstr. 
425  note,  the  defendant  made  an  oral  agreement  to  take  an 
assignment  of  leasehold  premises,  to  wit,  a  brick-ground,  and 
to  buy  the  brick,  consisting  chiefly  of  half-made  bricks,  at  a 
valuation  to  be  made  by  third  persons  ;  it  was  held  that 
though  the  contract  for  the  bricks  was  not  within  the  statute, 

(a)  Mayfield  v.  Wadsley,  3  Barn.  &  Cres.  361  and  5  Dowl.  &  Eyl.  224. 
Ex  parte  Littlejohn,  3  Mont.  Deac.  &  De  Gex,  182.  Irvine  v.  Stone,  6  Cush. 
508.  Rand  i;.  Mather,  11  Cush.  1,  overruling  Loomis  d.  Newhall,  15  Pick.  159. 
Browne  on  St.  of  Fi-auds,  c.  ix. 


254  LAW   OP   CONTRACTS. 

yet  the  defendant  could  not  be  called  on  to  pay  for  half-made 
bricks  without  the  brick-ground.  And  see  also  Mechilen  v. 
Wallace,  7  Ad.  &  El.  49.  Cooke  v.  Tombs,  2  Anstr.  420. 
Hodgson  V.  Johnson,  El.  Bl.  &  El.  685.  In  such  cases  the 
parts  of  the  contracts  are  held  not  to  be  severable. 

The  general  doctrine,  as  to  agreements  that  contravene  leg- 
islative enactments,  is,  shortly,  as  follows  : 

Whenever  the  consideration  of  an  agreement,  or  the  act 
undertaken  to  be  done,  is  in  violation  of  a  statute,  the  agree- 
ment is  void,  and  no  action  can  be  maintained,  by  either  party, 
for  the  breach  of  it. 

It  was  held,  in  th*  time  of  Elizabeth,  that  when  a  statute 
merely  inflicted  a  penalty  for  doing  an  act,  or  for  making  a 
contract  of  a  specified  kind,  without  prohibiting  the  act  or 
contract,  the  payment  of  the  penalty  was  the  only  legal  con- 
sequence of  a  violation  of  the  statute  ;  that  the  contract  was 
valid  and  might  be  enforced.  Thus,  under  the  statute  of  27 
Hen.  VL,  which  imposed  a  penalty  for  selling  property  at  a 
fair  on  Sunday,  it  was  held  that  the  contract  of  sale  was  not 
void,  though  the  seller  was  liable  to  punishment,  (a)  And  in 
Gremare  v.  Valon,  (b)  Lord  Ellenborough  ruled  that  an  un- 
licensed surgeon  might  recover  pay  for  surgical  services, 
though  the  statute  of  3  Hen.  VIII.  enacts  that  no  person 
shall  practise  as  a  surgeon,  without  being  licensed,  under  a 
penalty.  In  Bartlett  v.  Vinor,  (c)  Lord  Holt  denied  this 
doctrine,  and  said  that  "  a  penalty  implies  a  prohibition, 
though  there  are  no  prohibitory  words  in  the  statute,"  And 
in  Drury  v.  Defontaine,  (d)  Mansfield,  C.  J.,  declared  that  the 
law  is  changed  since  the  decision  in  Comyns  v.  Boyer,  and  "  if 
any  act  is  forbidden  under  a  penalty,  a  contract  to  do  it  is  now 
held  void.     That  case  is  not  now  law." 

(a)  Comyns  v.  Boyer,  Cro.  Eliz.  485. 

(6)  2  Caiiipb.  144.  This  was  carried  to  the  court  in  bank,  but  turned  there 
upon  a  point  of  evidence. 

(c)  Carth.  252  and  Skinner,  322. 

(d)  1  Taunt.  136.  See  also  De  Begnis  v.  Armistead,  10  Bing.  110  and  3 
Moore  &  Scott,  516. 


UNLAWFUL.  255 

Accordingly  it  has  been  decided,  under  the  statute  of  39 
Geo.  III.  (which  directs  that  printers  shall  affix  their  names  to 
any  book  which  they  print,  and  that  if  they  omit  so  to  do  they 
shall  forfeit  <£20  for  each  copy,)  that  a  printer,  who  omits  to 
affix  his  name  to  a  book,  cannot  recover  for  labor  and  mate- 
rials used  in  printing  it.  Bayley,  J.,  said  it  made  no  differ- 
ence whether  the  thing  was  prohibited  or  enjoined  absolutely, 
or  only  under  a  penalty,  {a)  The  same  principle  was  rec- 
ognized by  Lord  Eldon,  in  Dyster's  case,  (b)  So  in  Nichols 
V.  Ruggles,  ((')  it  was  decided  that  a  contract  to  reprint  any 
literary  work,  in  violation  of  a  copyright  secured  to  a  third 
person,  is  void ;  and  that  a  printer  who  executes  such  a  con- 
tract, knowing  the  rights  of  such  third  person,  cannot  recover 
pay  for  his  labor.  Yet  the  act  of  congress  on  the  subject 
merely  infficts  a  penalty  on  the  offender,  and  contains  no  pro- 
hibitory clause.  So  of  the  sale  of  lands  in  Pennsylvania,  un- 
der the  Connecticut  title,  (d)  By  the  statute  of  22  Car.  II.  it 
is  enacted  that  if  any  person  shall  sell  any  sort  of  grain, 
usually  sold  by  bushel,  by  any  other  bushel  or  measure  than 
that  which  is  agreeable  to  the  standard  marked  in  the  excheq- 
uer, he  shall  forfeit  40s.  Under  this  statute,  a  contract  for  the 
sale  of  corn  by  the  hobbett,  which  is  not  a  part  of  the  stand- 
ard measure,  was  held  to  be  void ;  and  the  court  refused  to 
sustain  an  action  against  the  purchaser,  on  his  refusal  to  per- 
form his  contract,  (e) 

By  the  English  statute  of  29  Car.  II.  c.  7,  "  no  tradesman, 
artificer,  workman  or  laborer,  or  other  person  whatsoever,  shall 
do  or  exercise  any  worldly  labor,  business,  or  work  of  their  or- 
dinary calling  upon  the  Lord's  day,  or  any  part  thereof,  works 
of  necessity  and  charity  only  excepted,"  under  a  penalty. 

The  decisions  on  this  statute  and  the  dicta  of  judges  are 
not  perfectly  consistent.     The  principle  seems  to  be  this  ;  to 

(a)  Bensley  v.  Bignold,  5  B.  &  Aid.  335. 
(6)  1  Rose,  349. 

(c)  3  Day,  145. 

(d)  Mitchell  V.  Smith,  4  Yeates,  84.     4  Dall.  269.     1  Binn.  110. 

(e)  Tyson  v.  Thomas,  McClel.  &  Y.  119.  See  4  C.  B.  376,  and  also 
Forster  v.  Taylor,  5  B.  &  Ad.  887.     Little  v.  Poole,  9  Barn.  &  Cres.  192. 


266  LAW   OF   CONTRACTS. 

wit,  if  any  person  makes  a  contract,  which  is  within  his  or- 
dinary calling'  on  the  Lord's  day,  he  cannot  enforce  that 
contract ;  and  that  "  worldly  labor  "  is  not  confined  to  one's 
ordinary  calling,  but  applies  to  any  business  he  may  carry 
on.  (a)  But  where  one  purchases  an  article  on  that  day,  and 
retains  it,  and  afterwards  promises  to  pay  for  it,  he  is  liable  to 
an  action  for  the  price ;  but  not  on  the  original  contract,  (b) 

In  Pennsylvania,  a  note  given  on  the  Lord's  day  is  held  to 
be  void,  (c)  In  Connecticut,  a  plea  to  an  action  on'  a  prom- 
issory note,  that  it  was  executed  and  delivered  on  the  Lord's 
day,  was  held  to  be  a  good  bar.  (d)  By  the  Massachusetts 
statutes,  the  doing  of  "  any  manner  of  labor,  business  or  work, 
except  only  works  of  necessity  or  charity,  or  any  travelling, 
except  from  necessity  or  charity,"  are  expressly  forbidden 
under  a  penalty.  Formerly  it  was  provided  that  the  Lord's 
day  should  be  "  understood  to  include  the  time  between  the 
midnight  preceding  and  the  sunsetting  of  the  said  day."  •  Rev. 
Sts.  c.  50,  §  4.  But  now  it  "  shall  be  the  time  from  midnight 
to  midnight."  Gen.  Sts.  c.  84,  §  12.  Under  the  former  law, 
it  was  necessary  that  it  should  appear  or  be  proved,  in  order 
to  avoid  a  contract,  &c.,  that  it  was  made  within  the  prescribed 
hours,  or  was  not  from  necessity  nor  charity.  Geer  v.  Put- 
nam, 10  Mass.  312.  Clap  v.  Smith,  16  Pick.  247.  And  see 
also  10  Met.  364.  12  ib.  26.  13  ib.  287.  This  is  no  longer 
necessary  in  that  State.  And  it  is  now  there  held,  that  if  a 
party  offers  in  evidence  his  day-book  in  an  action  for  goods 
sold  by  him,  and  the  charge  is  dated  on  a  Sunday,  he  cannot 
I  recover,  unless  he  shows,  (as  he  may  be  allowed  to  do,)  that 
the  sale  there  charged  was  not  in  fact  made  on  that  day. 
Bustin  V.  Rogers,  11  Cush.  346.  That  a  note  bears  date  on 
Sunday,  is  not  cause  for  arresting  judgment  on  a  verdict 
found  for  the  holder.     Hill  v.  Dunham,  7  Gray,  543. 

(a)  Fennell  v.  Ridler,  5  Barn.  &  Cres.  406  and  8  Dowl.  &  Ry.  204.    Smith 
V.  Sparrow,  4  Bing.  84.     See  4  Best  &  Smith,  927. 

(b)  WilHams  v.  Paul,  6  Bing.  653.    See  5  Mees.  &  Welsh.  702.    1  Horn  & 
Hurlst.  12. 

(c)  Kepner  v.  Keefer,  6  Watts,  231.     See  also  2  Miles,  402. 

(d)  AVight  V.  Geer,  1  Root,  474. 


UNLAWFUL.  257 

An  action  cannot  be  maintained  for  a  deceh.  practised  in 
the  exchange  of  horses  or  for  breach  of  warranty  on  the  sale 
of  a  horse,  nor  for  pay  for  a  horse  sold  on  Sunday.  Robeson  v. 
French,  12  Met.  24.  Hulet  v.  Stratton,  5  Cush.  539.  Ladd 
V.  Rogers,  11  Allen,  209.  Lyon  v.  Strong,  6  Verm.  219.  But 
see  7  Jones  (N.  C.)  356. 

In  Gregg  v.  Wyman  (a)  it  was  decided  that  he  who  know- 
ingly let  a  horse  on  Sunday,  to  be  driven  to  a  specified  place, 
but  not  for  any  necessary  or  charitable  purpose,  could  not 
maintain  an  action  against  the  hirer  for  killing  the  horse  by 
immoderate  driving  beyond  the  place  specified.  See  also,  to 
the  same  effect,  Way  v.  Foster,  1  Allen,  408,  though  Mr.  Jus- 
tice Chapman  there  said  thatr  Gregg  v.  Wyman  "  carried  the 
doctrine  to  its  extreme  limit,"  and  had  been  denied,  and  the. 
contrary  decided  by  the  court  of  New  Hampshire,  in  Wood- 
man V.  Hubbard,  (b)     See  also  23  Howard,  209,  218. 

A  person  travelling  on  Sunday,  unnecessarily  and  not  from 
charity,  cannot  maintain  an  action  against  a  town  for  an  in- 
jury then  sustained  by  him  from  its  defective  highway,  (c) 
But  in  Maine,  where  Sunday  included  only  the  time  from 
midnight  to  sunsetting,  it  was  held  to  be  no  defence  to  an 
action  against  a  town  for  damage  to  a  horse  by  a  defect  in  its 
highway,  after  sunset  of  that  day,  that  the  plaintiff  let  the 
horse  on  that  day,  and  that,  at  the  time  of  the  injury,  the 
horse  was  used  under  that  letting,  (d) 

An  action  on  a  bond  executed  on  Sunday,  neither  from  ne- 
cessity nor  charity,  cannot  be  maintained,  (e) 

The  execution  of  a  will  on  Sunday  is  not  "  labor,  business, 
or  work  "  prohibited  by  statute.  (/)  And  if  a  letter  is  written 
and  delivered  on  Sunday,  requesting  and  promising  to  pay  for 
a  certain  service,  and  there  is  no  proof  of  an  agreement,  made 
on  that  day,  to  perform  the  service,  the  party  who  received 

(a)  4  Cush.  322.  See  11  Conn.  455. 

(b)  5  Foster,  67.     And  see  39  Maine,  199. 

(c)  Bosworth  v.  Swansey,  10  Met.  363.     Jones  v.  Andover,  10  Allen,  18. 
{(l)  Bryant  v.  Biddeford,  39  Maine,  193. 

(e)  Pattee  v.  Greely,  13  Met.  284. 
If)  Bennett  v.  Brooks,  9  Allen,  118.     See  7  E.  I.  22. 
17 


f 


258  LAW   OF    CONTRACTS. 

the  letter  may«naintain  an  action  upon  the  promise  therein 
contained,  if  he  afterwards  perform  the  service  on  a  week 
day.  (a) 

In  13  Met.  287,  Chief  Justice  Shaw,  in  a  note,  referred  to 
several  cases  in  other  States,  in  which  it  had  been  decided 
that  no  action  would  lie  on  a  contract  made  on  Sunday,  not 
from  necessity  or  charity  ;  namely,  18  Alab.  390, 19  ib.  566.  2 
Doug.  (Mich.)  73.  7  Blackf.  479.  13  Shepley,  (26  Maine,)  464. 
And  here  may  be  added  14  N.  Hamp.  133, 19  ib.  233.  25  Ind. 
503.  18  Verm.  379.  14  B.  Monroe,  419.  22  Penn.  State 
Rep.  109.     24  N.  Y.  Rep.  353.     12  Mich.  378. 

In  30  Missouri,  387,  a  note,  given  on  Sunday  for  an  ante- 
cedent debt,  was  held  to  be  valid.  A  debt  is  discharged  by 
payment  thereof  made  on  Sunday,  and  retained  by  the  cred- 
itor, 7  Gray,  164.  A  note  actually  made  on  Sunday,  but 
dated  on  Monday,  for  the  purpose  of  giving  it  credit,  is  valid 
in  the  hands  of  an  indorsee,  without  notice,  (b)  So  of  a  note 
dated  and  made  on  Sunday,  in  the  hands  of  a  bond  fide  holder 
who  did  not  take  notice  of  the  date,  (c) 

In  good  sense,  there  can  be  no  difference  between  an  ex- 
press prohibition  of  an  act  by  statute  (whether  under  a  penalty 
or  not)  and  the  infliction  of  a  penalty  for  the  doing  of  the 
same  act,  without  an  express  prohibition.  In  many  statutes, 
there  are  both  a  prohibition  and  a  penalty;  in  others,  a  penalty 
without  a  prohibition,  or  a  prohibition  without  a  penalty. 
And  it  may  be  now  considered  as  settled  by  authority,  as  well 
as  required  by  policy  and  legal  conformity,  that  all  contracts 
which  contravene  the  provisions  of  a  statute,  however  that 
statute  may  express  the  will  of  the  legislature,  are  void  for 
illegality. 

It  is  not  easy  to  reconcile  the  case  of  Johnson  v.  Hudson  {d) 
with  this  doctrine  and  with  the  other  modern  cases,  unless  it  be 
upon  a  ground  incidentally  mentioned  by  the  reporter.  The 
plaintiff,  in  that  case,  had,  without  being  licensed,  sold  a 
quantity  of  tobacco,  which  was  part  of  a   larger   quantity 

(a)  Tuckerman  v.  Hinkley,  9  Allen,  452.     And  see  15  N.  Hamp.  577. 

{h)  Vinton  v.  Peck,  14  Mich.  287. 

(c)  42  N.  Hamp.  369.  (d)  11  East,  180. 


UNLAWFUL.  259 

consigned  to  him  to  be  disposed  of.  The  statute  of  29  Geo. 
III.  enacts  that  every  person,  who  shall  deal  in  tobacco,  shall, 
before  he  shall  deal  therein,  take  out  a  license,  under  a  penalty 
of  <£50.  In  a  suit  against  the  purchaser,  for  the  price  of  the 
tobacco,  a  defence  was  interposed  that  the  plaintiff  could  not 
legally  sell  it.  The  plaintiff  obtained  a  verdict  before  Lord 
EUenborough,  and  a  rule  was  reluctantly  granted  to  show 
cause  why  the  verdict  should  not  be  set  aside ;  the  court  say- 
ing there  was  no  clause  in  the  statute  making  the  sale  illegal, 
and  that  it  was,  at  most,  a  breach  of  a  regulation  protected 
by  a  specific  penalty.  "  They  also  doubted  whether  the  plain- 
tiff could  be  said  to  be  a  dealer  in  tobacco,  within  the  mean- 
ing of  the  act."  The  rule  was  finally  discharged.  And  on 
the  ground  that  the  plaintiff  was  not  a  dealer,  within  the  act, 
the  case  does  not  conflict  with  the  other  adjudications,  [a) 

Where  a  statute  expressly  prohibits  an  act,  the  decisions 
are  uniform,  that  a  contract,  founded  on  a  violation  of  the  en- 
actment cannot  be  enforced.  Thus,  as  the  statute  of  10  Geo. 
11.  c.  28,  prohibits  theatrical  entertainments,  unless  they  are 
licensed  by  the  king  or  lord  chancellor,  it  was  decided  that 
no  action  lay  for  a  breach  of  an  agreement  to  dance  at  Hay- 
market  Theatre ;  there  having  been  no  license  granted  for  that 
theatre,  [b)  So  where  a  bank  made  a  loan  of  bills  of  foreign 
banks,  contrary  to  a  statute  prohibiting  such  loan,  and  took  a 
note  payable  in  the  same,  the  promisor  was  held  not  to  be 
liable  on  his  note,  (c)  So  of  a  note  given  for  shingles  not  of 
the  dimensions,  nor  surveyed,  as  required  by  a  statute  which 
forbade  the  sale,  [d)  So  of  a  note  given  as  a  premium  on  a 
policy  of  insurance  of  a  ship  to  a  port  interdicted  by  an  act  of 
congress,  (e ) 

(a)  See  5  B.  &  Ad.  899.  14  Mees.  &  Welsh.  463.  In  Lloyd  &  Welsh.  96, 
note,  and  11  Cush.  323,  it  is  denied  that  the  case  of  Johnson  v.  Hudson  is  law. 

(h)  Gallini  v.  Laborie,  5  T.  R.  242.     See  7  Gray,  162. 

(c)   Springfield  Bank  v.  Merrick,  14  Mass.  322. 

(rf)  Wheeler  V.  Russell,  17  Mass.  258.  Law  f.  Hodson,  2  Campb.  147 
and  11  East,  300.     Little  v.  Poole,  9  Barn.  &  Cres.  192. 

(e)  Russell  v.  DeGrand,  15  Mass.  35.  See  also  1  Bos.  &  Pul.  272.  6  T. 
R.  723.     4  M.  «Sj  S.  346.     1  Comyn  on  Con.  (1st  ed.)  39-46. 


260  LAW   OF    CONTRACTS. 

Most  of  the  Qases  on  this  subject  are  collected,  and  ably 
canvassed  by  the  counsel  who  argued  the  case  of  Wheeler  v. 
E-ussel.  (a) 

It  makes  no  difference  whether  the  contract  be  oral,  written, 
or  sealed.  If  the  consideration,  or  the  act  to  be  done,  be  ille- 
gal, the  contract  is  void,  whatever  form  it  may  have  assumed. 
As  "  courts  will  not  lend  their  aid  to  enforce  a  contract  en- 
tered into  with  a  view  of  carrying  into  effect  anything  which 
is  prohibited  by  law,"  they  will  not  allow  a  party,  who  sells 
goods,  knowing  that  the  buyer  is  to  use  them  in  contravention 
of  a  statute,  to  recover  the  price.  Thus  where  an  Englishman 
in  Guernsey  sold  goods,  and  assisted  in  packing  them  in  a 
particular  manner  for  the  purpose  of  their  being  smuggled  into 
England,  it  was  held  that  the  seller  could  not  recover  pay  for 
them,  (b)  And  the  same  doctrine  was  applied,  where  the 
seller  was  a  foreigner,  who  sued  on  a  bill  of  exchange  given 
for  goods  which  he  had  assisted  in  smuggling  into  England. 
He  could  not  resort  to  the  laws  of  England  which  he  had  as- 
sisted to  evade,  (c)  Where  an  English  merchant  chartered  a 
vessel  of  a  merchant  in  New  York,  while  the  non-intercourse 
laws  of  the  United  States  were  in  force,  for  the  purpose  of 
conveying  a  cargo  from  New  York  to  Fayal,  to  be  transported 
thence  to  England,  it  was  held,  that  he  could  not  maintain  an 
action  in  this  country  for  the  hire  of  the  vessel,  (d) 

But  where  the  contract  and  delivery  of  goods  were  complete 
abroad,  and  the  vendor,  a  foreigner,  did  no  act  to  assist  the 
smuggling  of  them,  he  was  held  entitled  to  recover  pay  for 
them  in  England,  though  he  knew  that  they  were  to  be  smug- 
gled, (e)  This  case  can  be  reconciled  with  the  subsequent 
decisions  only  on  the  ground  that  a  foreigner  is  not  bound  to 
guard  the  revenue  laws  of  England,  though  he  cannot  actively 
assist  in  violating  them.  See  Story  on  Conflict  of  Laws,  §§ 
251,  257.     See  also  post.  269,  270. 

(a)  1 7  Mass.  258. 

(b)  Biggs  V.  Lawrence,  3  T.  R.  454. 

(c)  Clugas  V.  Penaluna,  4  T.  R.  466.     Waymell  v.  Reed,  5  T.  R.  699. 

(d)  Graves  v.  Delaplaine,  14  Johns.  146. 

(e)  Holman  v.  Johnson,  Cowp.  341. 


UNLAWFUL.  261 

Though  Mansfield,  C.  J.,  in  Hodgson  v.  Temple  (a)  said, 
"  the  merely  selling  goods,  knowing  that  the  buyer  will  make 
an  illegal  use  of  them,  is  not  sufficient  to  deprive  the  vendor, 
&c. ;  he  should  share  in  the  illegal  transaction  ;  "  yet  that  point 
was  not  necessarily  involved  in  the  decision ;  and  in  Light- 
foot  V.  Tenant,  (b)  it  was  decided  that  a  person  selling  goods 
in  order  that  they  might  be  exported  to  a  place  where  by 
statute  they  could  not  be  exported  legally,  could  not  recover, 
even  on  a  bond  given  for  the  price  of  them.  So  of  drugs  sold 
and  delivered  to  a  brewer,  the  vendor  knowing  that  they  were 
to  be  used  in  a  brewery,  contrary  to  the  statute  of  42  Geo. 
III.,  though  it  did  not  appear  that  they  were  so  used,  (c)  So 
of  money  lent  for  the  purpose  of  settling  losses  on  illegal 
stock-jobbing  transactions,  and  thus  applied  by  the  bor- 
rower, (d)  "  K  it  be  unlawful,"  says  Abbott,  C.  J.,  "  for  one 
man  to  pay,  how  can  it  be  lawful  for  another  to  furnish  him 
with  the  means  of  payment?"  So  of  money  lent  to  ransom 
a  ship,  contrary  to  the  statute  of  45  Geo.  III.  {e)  In  Ex  parte 
Bulraer,  (/)  Lord  Erskine  held  that  if  the  money  be  not  ap- 
plied to  the  illegal  purpose,  the  lender  may  maintain  an  action 
on  the  loan,  and  he  decreed  accordingly.  But  the  court  of 
king's  bench  decided  differently  in  Ex  parte  Bell,  (g)  and  the 
remarks  of  Eyre,  C.  J.,  in  1  Bos.  &  Pul.  556,  and  of  Lord 
Ellenborough,  in  Langton  v.  Hughes,  (A)  show  that  Lord  Ers- 
kine's  doctrine  is  not  recognized  as  the  law  of  England. 

The  principle  of  the  decisions  last  cited  is  not  peculiar  to 
contracts  prohibited  by  statutes,  aUhough  those  decisions  were 
made  in  cases  which  turned  on  statutory  prohibitions,  (i) 

(a)  1  Marsh.  5  and  5  Taunt.  181.  But  see  Lloyd  &  Welsb.  97  and  11 
Cush.  323,  contra. 

(b)  1  Bos.  &  Pul.  5.51. 

(c)  Langton  v.  Hughes,  1  M.  &  S.  593.     See  also  6  Ohio,  442. 

(d)  Cannan  v.  Bryoe,  3  B.  &  Aid.  179. 

(e)  Webb  v.  Brooke,  3  Taunt.  6. 
(/)  13  Ves.  313. 

(g)  1  M.  &  S.  751. 

(h)   1  M.  &  S.  596,  597. 

(i)  See  1  Bos.  &  Pul.  456.     3  Taunt.  12. 


262  LAW   OF    CONTRACTS. 

There  remains  only  one  more  topic  in  the  doctrine  of  un- 
lawful contracts,  now  to  be  mentioned ;  namely,  how  far  the 
foregoing  principles  affect  subsequent  or  collateral  contracts, 
the  direct  and  immediate  consideration  of  which  is  not  illegal. 
This  is  a  subject  somewhat  intricate,  and  the  adjudications 
on  it  are  not  easily  reducible  to  any  clear  elementary  proposi- 
tion. The  later  cases  are  manifestly  more  strict  than  the 
earlier  ones,  as  it  cannot  have  failed  to  be  seen,  is  likewise 
true  of  the  decisions  on  the  whole  doctrine  of  unlawful  agree- 
ments. 

It  may  be  taken,  however,  as  established  doctrine,  that  if 
a  promise  is  entirely  disconnected  with  the  illegal  act,  and  is 
founded  on  a  new  consideration,  it  is  not  affected  by  that 
act,  though  the  promisee  knew,  and  even  though  he  were  the 
contriver  and  conductor,  of  such  act.  As  if  a  smuggler  sell 
goods  to  one  who  know^s  they  were  smuggled,  but  who  had 
no  agency  in  running  them,  he  may  recover  pay  for  the 
goods,  (a)  So,  where  Armstrong,  during  the  war  of  1812, 
imported  goods  on  his  Own  account  from  the  enemy's  country, 
under  the  false  pretext  of  a  capture  Jure  belli,  and  goods  were 
sent  by  the  same  ship  to  Toler,  and  on  a  seizure  of  the  goods, 
Toler,  at  Armstrong's  request,  became  surety  for  the  payment 
of  the  duties,  &c.,  on  Armstrong's  goods,  and  also  became  re- 
sponsible for  the  expenses  of  defending  a  prosecution  for  the 
illegal  importation  of  the  goods,  and  was  compelled  to  pay 
them ;  it  was  held  that  Toler  might  maintain  an  action  on 
Armstrong's  promise  to  refund  the  money,  (b)  Marshall,  C. 
J.J  said:  "  The  contract  made  with  the  government  for  the  pay- 
ment of  duties  is  a  substantive  independent  contract,  entirely 
distinct  from  the  unlawful  importation;  the  consideration  is 
not  affected  with  the  vice  of  the  importation.  If  the  amount 
of  duties  be  paid  by  A.  for  B.,  it  is  the  payment  of  a  debt 
from  B.  to  the  government.  The  criminal  importation  con- 
stitutes no  part  of  this  consideration."     It  was  further  held, 

(«)   11  AVheat.  271,  276. 

(b)  1 1  Wheat.  258.  See  the  case  on  the  seizure  of  the  goods,  1  Wheat. 
408.     2  Wheat.  278, 


UNLAWFUL.  263 

however,  that  if  Toler  had  been  concerned  in  the  scheme  of 
importing  the  goods,  or  had  any  interest  in  the  goods  of  Arm- 
strong, or  if  they  had  been  consigned  to  him,  with  his  privity, 
that  he  might  protect  them  for  Armstrong,  no  action  could 
have  been  supported. 

In  Tenant  v.  ElHott,  {a)  and  in  Farmer  v.  Russell,  (b)  it  was 
held  that  where  on  an  illegal  contract  between  two  persons, 
one  of  them  pays  money  to  a  third  person  for  the  other,  the 
other  may  recover  the  money  from  such  third  person.  The 
court  said  that  the  demand  arose  simply  from  the  placing  of 
the  money  in  the  defendant's  hands  to  be  delivered  to  the 
plaintiff,  and  not  from  the  original  unlawful  contract.  Eyre, 
C.  J.,  admitted  that  if  it  were  possible  to  mix  the  original 
transaction  with  the  contract  on  which  the  action  was  brought, 
the  plaintiff  could  not  recover. 

Several  cases  on  this  point  have  arisen  upon  the  statute  of 
7  Geo.  II.  c.  8,  "  to  prevent  the  infamous  practice  of  stock- 
jobbing." The  fifth  section  of  that  statute  enacts,  "  that  no 
money  or  other  consideration  shall  be  voluntarily  given,  paid, 
had  or  received,  for  the  compounding,  satisfying  or  making  up 
any  difference  for  not  transferring  any  public  stock,  or  for  not 
performing  any  contract  or  agreement  stipulated  to  be  per- 
formed ;  and  all  and  every  person,  who  shall  voluntarily  com- 
pound, make  up,  pay,  satisfy,  take  or  receive  such  difference 
money,  &c.,  shall  forfeit  the  sum  of  one  hundred  pounds." 
The  first  case,  which  arose  on  a  collateral  contract  connected 
with  the  transactions  prohibited  by  this  statute,  is  Faikney  v. 
Reynous.  (c)  Faikney  and  Richardson  were  jointly  concerned 
in  stockjobbing  transactions,  and  Faikney  voluntarily  paid 
X3000  to  divers  persons  for  compounding  differences  for  not 
delivering  stock.  Richardson  and  Reynous  gave  a  bond  to 
Faikney  to  reimburse  him  a  moiety  of  the  sum  thus  paid  by 
him ;  and  in  a  suit  on  this  bond,  the  court  held  the  defendants 
liable,  on  the  ground  that  the  bond  was  not  given  for  payment 

(a)  1  Bos.  &  Pul.  3 

(b)  1  Bos.  &  Pul.  296,  Rooke,  J.,  dissenting. 

(c)  4  Bur.  2069. 


264  LAW   OF   CONTRACTS. 

of  the  composition  money,  but  for  reimbarsing  the  plaintiff  a 
debt  of  honor  paid  on  Richardson's  account.  The  next  case 
is  Petrie  v.  Hannay,  (a)  in  which  an  action  was  sustained  on 
a  bill  of  exchange  accepted  for  reimbursement  of  a  moiety  of 
a  sum  paid  to  a  broker  with  the  privity  and  consent  of  the 
defendant ;  the  broker  having  been  employed  by  the  plaintiff 
and  defendant  to  pay  differences  in  a  stockjobbing  transaction 
in  which  they  were  jointly  concerned.  Lord  Kenyon  dis- 
sented ;  but  the  other  judges  felt  bound  by  the  decision  in 
Faikney  v.  Reynous.  In  both  these  cases,  the  court  proceeded 
(partly  at  least)  on  the  distinction  between  contracts  for  the 
doing  of  things  mala  in  se,  and  things  merely  prohibited  by 
law.  This  distinction,  it  has  been  seen,  is  now  exploded ; 
though  Lord  Erskine  recognized  it  in  Ex  parte  Bulmer,  here- 
tofore cited.  In  Petrie  v.  Hannay,  a  distinction  was  also 
taken  between  an  express  request  to  advance  money  in  pay- 
ment of  an  illegal  demand,  and  an  implied  contract;  and  the 
same  distinction  was  suggested  by  Heath,  J.,  in  2  H.  Bl.  382, 
and  by  Mansfield,  C.  J.,  in  4  Taunt.*  167.  But  Lord  Eldon 
denied  that  any  such  distinction  existed,  (b) 

The  real  ground  of  the  decisions  in  Faikney  v.  Reynous, 
and  Petrie  v.  Hannay,  was,  that  the  plaintiffs'  rights  of  action 
were  taken  by  the  court  to  be  founded  altogether  on  the  con- 
tract of  loan,  &c.,  between  them  and  the  defendants,  and  de- 
rived no  aid  from  the  illegal  transactions  in  which  the  parties 
had  been  previously  engaged,  and  were  not  affected  by  them. 
In  Booth  V.  Hodgson,  (c)  Ashhurst,  J.,  said  the  ground  of  de- 
cision in  Faikney  v.  Reynous  was  that  the  defendant  had 
voluntarily  given  another  security ;  "  but  it  does  not  follow 
that  the  plaintiff  could  have  recovered  on  the  original  contract 
for  money  paid  to  the  use  of  the  defendant."  The  same  re- 
mark is  applicable  to  Petrie  v.  Hannay,  where  a  bill  of  ex- 
change had  been  accepted  by  the  defendant.  But  can  this 
be  a  valid  ground  of  claim,  in  any  case  of  this  sort?  Would 
it  not  bind  a  defendant,  in  all  cases,  to  pay  an  unlawful  de- 
mand, if  he  should  make  an  express  promise  to  pay,  and  thus 
legalize  all  contracts,  however  vicious  ? 

(a)  3  T.  R.  418.  (b)  2  Bos.  &  Pul.  373.  (c)  6  T.  R.  410. 


UNLAWFUL.  265 

The  cases  of  Faikney  v.  Reynous  and  Petrie  v.  Hannay 
were  never  favorably  received  ;  have  often  been  questioned  by 
the  highest  authority ;  and  may  now  be  considered  as  wholly 
overturned.  In  Mitchell  v.  Cockburne,  (a)  Eyre,  C.  J.,  said 
the  latter  of  these  cases  was  decided  on  the  authority  of  the 
former,  "  but  perhaps  it  would  have  been  better  if  it  had  been 
decided  otherwise ;  for  when  the  principle  of  a  case  is  doubt- 
ful, I  think  it  better  to  overrule  it  at  once,  than  build  upon  it  at 
all."  In  Booth  v.  Hodgson,  (b)  Lord  Kenyon,  who  dissented 
from  the  other  judges  in  Petrie  v.  Hannay,  said  he  wished  to 
avoid  making  any  other  observation  on  those  two  cases,  than 
that  they  were  distinguishable  from  the  case  then  before  him. 
In  Aubert  v.  Maze,  (<?)  Lord  Eldon  said  :  "  It  seems  to  me  that 
if  the  principle  of  those  cases  is  to  be  supported,  the  act  of 
parliament  will  be  of  very  little  lise."  Heath  and  Chambre, 
Js.,  also  questioned  the  correctness  of  those  decisions.  In  Ex 
parte  Daniels,  (d)  Lord  Eldon  again  expressed  his  dissent  to 
those  cases.  Lord  Loughborough  also,  in  Ex  parte  Mather,  (e) 
said  he  could  not  accede  to  them.  And  Lord  Manners,  in 
Ottley  V.  Brown, (/)  entirely  disregarded  them.  Lord  Erskine, 
however,  in  Ex  parte  Bulmer  (g)  recognized  the  doctrine  of 
those  cases  ;  but  the  decision  made  by  him,  in  that  case,  has 
not  been  followed,  but  overruled,  as  before  mentioned.  There 
are,  doubtless,  expressions  in  the  opinion  given  by  Marshall, 
C.  J.,  in  Armstrong  v.  Toler,  (h)  from  which  it  may  be  in- 
ferred that  he  considered  the  cases  of  Faikney,  &c.,  as  sound 

law. 

The  direct  decisions  of  the  courts  in  England,  in  addition 
to  the  foregoing  dissenting  dicta,  leave  those  two  first  decis- 
ions on  the  stockjobbing  law  without  foundation  for  their 
support. 

In  Steers  v.  Lashley,  {i)  five  years  after  Petrie  v.  Hannay 

(a)  2  H.  Bl.  379.     See  also  10  Bing.  110. 

(6)  6  T.  R.  409.  (c)  2  Bos.  &  Pul.  373. 

(d)   14  Ves.  192.  (e)  3  Ves.  373. 

(/)   1  Ball  &  Beatty,  366,  367.  (g)  13  Ves.  313. 

Qi)  11  Wheat.  258.  (0  6  T.  E.  61. 


266  LAW   OP   CONTRACTS. 

was  decided,  it  was  held  that  a  bill  of  exchange  accepted  for 
the  amount  of  money  paid  by  a  broker  for  the  acceptor,  for 
differences  in  stockjobbing  transactions,  could  not  be  recov- 
ered, because  the  bill  was  "  given  for  the  very  differences." 
Lord  Kenyon  said :  "  If  the  plaintiff  had  lent  this  money  to 
pay  the  differences,  and  had  afterwards  received  the  bill  for 
that  sura,  then  according  to  the  principle  established  in  Petrie 
V.  Hannay,  he  might  have  recovered."  (a)  "  With  great  sub- 
mission to  Lord  Kenyon,"  says  Lord  Erskine,  (5)  (who  was 
counsel  in  Steers  v.  Lashley,)  that  case  is  the  same  with  Faik- 
ney  v.  Reynous  and  Petrie  v.  Hannay.  And  in  Cannan  v. 
Bryce,  (c)  it  was  expressly  held  that  money  lent  to  settle  losses 
on  illegal  stockjobbing  transactions  could  not  be  recovered. 
Ten  days  after  the  decision  of  Steers  v.  Lashley,  the  court  of 
common  pleas  decided  that  where  one  of  two  partners  in  co- 
partnership for  insuring  ships,  &c.,  contrary  to  the  statute  of  6 
Geo.  I.  c.  18,  had  paid  the  whole  loss,  he  could  not  recover  of 
his  copartner  a  moiety  of  the  money  so  paid,  (d)  So  in  Booth 
V.  Hodgson,  (e)  where  three  partners  were  concerned  in  illegal 
insurances,  in  the  name  of  one  of  them,  it  was  held  that  the 
ostensible  partner  could  not  recover  from  a  broker  premiums, 
received  by  him  for  the  firm,  on  such  insurances. 

In  Brown  v.  Turner  (/)  the  case  of  Steers  v.  Lashley  was 
confirmed,  in  a  case  precisely  like  it  in  principle,  though  a 
question  was  made  as  to  its  correctness,  as  well  as  respecting 
its  application  to  stockjobbing  in  the  stock  called  omnium. 
In  Aubert  v.  Maze,  {g)  the  case  of  Mitchell  v.  Cockburne  was 
revised  and  confirmed  ;  and  an  award  of  an  arbitrator  was  set 
aside  because  he  had  awarded  a  sum  due  from  one  partner  to 
another  for  money  paid  on  account  of  losses  incurred  in  illegal 
insurances.      In  Branton  v.   Taddy  {h)    it  was  decided  that 

(a)  Sir  James  Mansfield,  C.  J.,  also  intimated  a  distinction  between  money- 
borrowed  to  pay  an  illegal  demand,  and  money  advanced  to  effectuate  an 
illegal  transaction.     3  Taunt.  13. 

(b)  13  Ves.  313.  (c)  3  B.  &  Aid.  179. 
Id)  Mitchell  V.  Cockburne,  2  H.  Bl.  379.       (e)  6  T.  R.  405. 

(/)  7  T.  R.  630.  Ig)  2  Bos.  &  Pul.  371. 

\h)  1  Taunt.  6. 


UNLAWFUL.  267 

one  of  two  partners  in  illegal  underwriting  could  not  recover 
premiums  from  the  assured,  though  the  plaintiff  underwrote  in 
his  own  name  only,  and  the  agreement  between  him  and  his 
partner  was  secret,  and  unknown  to  the  assured  when  the 
policies  were  made.  In  Webb  v.  Brooke  (a)  it  was  held  that 
money  could  not  be  recovered,  which  was  lent  to  one  prisoner 
of  war  by  another,  for  the  purpose  of  obtaining  a  ransom  of 
the  defendant's  vessel,  contrary  to  statute ;  though  a  bill  of 
exchange  had  been  given  for  the  money,  payable  to  the  plain- 
tiff's order.  In  Clayton  v.  Dilly  (h)  it  was  decided  that  the 
plaintiff  could  not  recover  money  paid  on  the  loss  of  an  illegal 
wager  made  by  the  defendant's  authority.  In  Simpson  v. 
Bloss,  (e)  where  the  defendant  had  assumed  a  part  of  a  bet 
made  and  won  by  the  plaintiff,  in  an  unlawful  wager,  and  the 
plaintiff  advanced  to  the  defendant  his  share  of  the  winning, 
in  expectation  that  the  loser  would  pay  the  plaintiff,  but  the 
loser  died  insolvent,  not  having  paid ;  it  was  held  that  the 
plaintiff  could  not  recover  back  the  money  so  advanced. 
Though  the  demand  was  collateral  to  the  illegal  transaction, 
Gibbs,  C.  J.,  said  that  as  the  plaintiff  could  not  establish  his 
case  without  the  aid  of  the  unlawful  wager,  he  could  not 
maintain  his  action.  It  was  further  decided  in  Ex  parte 
Bell,  (d)  that  money  advanced  by  one  partner  to  the  others,  for 
the  purpose  of  paying  losses  incun-ed,  or  to  be  incurred,  in 
illegal  insurances  by  the  firm,  could  not  be  recovered  back, 
though  it  did  not  appear  that  the  money  had  been  thus  ap- 
plied. And  finally  it  was  determined,  in  Cannan  v.  Bryce,  (e) 
that  money  lent  by  one  who  was  not  a  party  to  the  transac- 
tion, but  for  the  purpose  of  enabling  the  borrower  to  pay  a 
loss  incurred  in  illegal  stockjobbing,  could  not  be  recovered. 
In  nearly  all  these  cases,  Faikney  v.  Reynous  and  Petrie  v. 
Hannay  were  relied  upon  by  counsel.  Various  distinctions 
between  those  cases  and  the  cases  under  consideration  were 
suggested  by  the  judges,  at  different  times,  but  their  authority 
was  not  wholly  denied,  except  in  one  or  two  instances.     Since 

(a)  3  Taunt.  6.  (h)  4  Taunt.  165. 

(c)  2  Marsh.  542  and  7  Taunt.  246.  ((/)   1  M.  &  S.  751. 

(e)  3B.  &  Aid.  179. 


268  LAW   OP   CONTEACTS. 

the  decision  in  Cannan  v.  Bryce,  it  is  not  easy  to  see  any 
ground  left  on  which  those  cases  can  stand,  (a) 

The  foregoing  principle  is  not  applicable  to  a  case  where  a 
debtor  conveys  his  property  for  the  purpose  of  defrauding  his 
creditors.  As  between  grantor  and  grantee,  in  such  case,  the 
transaction  is  valid.  No  one  but  a  creditor  of  the  grantor  can 
take  advantage  of  the  fraud.  Therefore,  if  the  grantee  have 
money  in  his  hands,  the  proceeds  of  the  property  so  conveyed, 
which  he  has  promised  to  pay  to  the  grantor's  children,  accord- 
ing to  the  original  agreement  between  him  and'  the  grantor, 
those  children  may  recover  the  money  ;  and  the  grantee  cannot 
defend  against  them  on  the  ground  that  the  original  transac- 
tion was  fraudulent,  (b) 

An  assignment  of  a  negotiable  instrument  founded  in  ille- 
gality generally  obliges  the  promisor  to  pay  the  assignee,  if  the 
assignment  be  taken  without  notice.  The  exceptions  to  this 
rule  arise  from  the  provisions  of  statutes:  As  in  the  case  of 
usurious  notes,  and  bills  of  exchange,  in  England,  previously 
to  the  passing  of  the  statute  of  58  Geo.  III.  c.  93,  which 
changed  the  law,  in  such  cases ;  or  notes  given  for  money 
won  by  gaming  or  lent  for  gaming,  (c)  But  if  the  assignee 
take  the  assignment  with  notice  of  the  original  vice,  he  cannot 
recover  of  the  original  promisor. 

If  a  contract  that  is  assigned  be  not  negotiable,  the  origi- 
nal promisor  may  defend  against  the  assignee,  though  he 
had  no  notice,  in  the  same  manner  as  against  the  original 
promisee,  (d) 

Under  the  statute  of  9  Anne,  c.  14,  "  to  restrain  gaming," 
money  lent  for  the  purpose  of  gaming  may  be  recovered  by 
the  lender,  in  assumpsit  on  the  loan.    The  statute  renders  void 

(a)  Before  Cannan  v.  Bryce  was  decided,  Mr.  Paley,  in  his  Treatise  on 
Agency,  104,  note,  spoke  of  those  cases  as  overturned.  See  Gross  v.  La 
Page,  Holt  N.  P.  105,  and  the  reporter's  note  to  that  case.  2  Evans's  Pothier, 
(1st  Amer.  ed.)  1-16.     Staples  v.  Gould,  5  Sandf.  411. 

(b)  Fairbanks  v.  Blackington,  9  Pick.  93. 

(c)  See  Kyd  on  Bills,  (3d  ed.)  280-283.  4  Mass.  371,  372.  13  Mass. 
615.     Ordon  Usury,  109. 

(rf)  Fales  V.  Mayberry,  2  Gallis.  560. 


UNLAWFUL.  269 

all  notes,  bills,  bonds,  mortgages,  or  other  securities  for  money 
won  by  gaming,  or  for  reimbursing  or  repaying  money  know- 
ingly lent  for  gaming  or  betting ;  but  does  not  render  contracts 
void,  (a)  Fair  gaming  is  not  prohibited  by  the  common  law, 
and  by  that  law  assumpsit  lies  for  money  won.  (b)  In  Massa- 
chusetts, all  gaming  is  unlawful,  and  he  who  lends  money  for 
the  purpose  of  enabling  another  to  engage  in  gaming,  cannot 
recover  it  of  the  borrower,  (c) 

See  Brooke  v.  Martin,  2  Wallace,  70,  (cited  ante,  116,  117,) 
where  Miller,  J.,  at  page  81,  referred  to  several  cases  in  17 
Howard,  237,  238,  in  which  a  difference  between  enforcing 
illegal  contracts,  and  asserting  a  title  to  money  which  has 
arisen  from  them,  was  distinctly  taken.  And  he  said  the 
court  were  satisfied  that  the  doctrine  of  those  cases  is  sound. 

The  case  of  Holman  v.  Johnson  was  cited,  ante,  260,  to 
the  position  that  a  foreigner  selling  and  delivering  goods,  in 
his  own  country,  to  a  British  subject,  may  recover  pay  for 
them  in  a  British  court,  though  he  knew  at  the  time  of  sale 
and  delivery,  that  the  buyer  intended  to  smuggle  them  into 
England ;  but  that  he  cannot  recover,  if  he  be  a  party  to  the 
smuggling  by  some  act.  And  in  Pellecat  v.  Angell,  2  Crompt. 
Mees.  &  Rose.  311,  Lord  Abinger  said  there  was  nothing 
illegal  in  merely  knowing  that  the  goods  one  sells  are  to  be  dis- 
posed of  in  contravention  of  the  fiscal  laws  of  another  country. 
"  The  distinction  is,"  said  he,  "  where  he  takes  an  actual  part 
in  the  illegal  adventure,  as  in  packing  the  goods  in  prohibited 
parcels,  or  otherwise ;  then  he  must  take  the  consequences  of 
his  own  act."  See  Addison  on  Con.  (2d  Amer.  ed.)  110. 
See  also  Cullen  v.  Philp,  in  Shaw  on  Obligations,  84,  note  (4), 

(a)  Barjeau  v.  Walmsley,  2  Strange,  1249.  Robinson  v.  Bland,  2  Bur.  1077. 
Wettenhail  v.  Wood,  1  Esp.  R.  18. 

(b)  Bac.  Ab.  Gaming,  A. 

(c)  White  V.  Buss,  3  Cush.  449.  And  so  is  the  law  of  England,  when 
money  is  lent  for  the  purpose  of  such  gaming  as  is  there  unlawful.  3  Mees.  & 
Welsb.  434  and  1  Horn  &  Hurlst.  146. 


270  LAW   OF   CONTRACTS. 

where  it  is  said  that  the  law  is  so,  whether  the  seller  abroad  is 
a  foreigner  or  a  native  of  Great  Britain. 

These  cases  seem  to  establish  a  distinction  between  contracts 
that  affect  merely  the  revenue  laws,  and  cases  in  which  other 
laws  are  violated  by  contracts,  (a)  And  since  the  decisions  in 
Lightfoot  V.  Tenant  and  Langton  v.  Hughes,  already  cited, 
revenue  cases  must  be  deemed  exceptions  to  the  rule  that 
is  applied  to  other  cases.  Yet  the  New  York  courts  have 
established  it  as  law  in  that  State,  (Kreiss  v.  Seligman, 
8  Barb.  439,  and  Tracy  v.  Talmage,  4  Kerna'n,  162,)  that 
knowledge  by  a  seller  that  the  buyer  intends  to  make  an 
unlawful  use  of  the  property  is  not  a  defence  to  an  action 
for  the  price,  (b)  Hence,  as  the  validity  of  a  contract  is 
to  be  determined  by  the  law  of  the  place  where  it  is  made, 
(6  Mass.  377)  it  was  decided,  in  Dater  v.  Earl  (c)  that 
the  seller  of  spirituous  liquors  in  New  York,  by  one  who 
knew  that  the  buyer  intended  to  sell  them  in  violation  of 
law,  but  did  not  participate  in  that  intent,  might  main- 
tain an  action  in  Massachusetts,  and  recover  pay  therefor. 
But  in  Webster  v.  Hunger,  (d)  it  was  held  that  a  sale  of  such 
liquors  in  another  State,  which  sale  was  there  lawful,  if  made 
by  a  citizen  of  Massachusetts,  who  knew,  or  had  reasonable 
cause  to  believe,  that  the  purchaser  intended  to  sell  them  in 
Massachusetts  against  law,  and  "  with  a  view  to  such  result," 
could  not  there  support  an  action  for  the  price. 

In  M'Intyre  v.  Parks,  3  Met.  207,  an  action  was  maintained 
against  a  citizen  of  Massachusetts  by  a  citizen  of  New  York 
for  the  price  of  lottery  tickets,  though  the  plaintiff  knew  that 
the  defendant  bought  them  for  the  purpose  of  selling  them  in 
his  own  State  against  law  ;  the  sale  being  lawful  in  New 
York.  This  case  was  not  satisfactory  to  the  profession,  and 
though  it  may  not  be  sustainable  on  the  ground  upon  which 
it  was  placed,  namely,  the  decision  in  Holman  v.  Johnson, 
yet  it  would  seem  that  it  may  now  rest  on  the  same  ground 
that  upholds  the  case  of  Dater  v.  Earl,  supra. 

(a)  Sec  2  Parsons  on  Notes  and  Bills,  319-321. 

(b)  And  so  it  is  held  in  Maryland.     10  Gill  &  Johns.  11. 

(c)  3  Gray,  482.  ((/)  8  Gray,  584. 


UNLAWFUL.  271 

Contracts  in  fraud  of  bankrupt  and  insolvent  acts. 

The  intent  of  such  acts  (statutes)  is,  that  all  the  property  of 
a  bankrupt  or  insolvent  shall  be  equally  distributed  among  his 
creditors,  and,  that  being  done,  that  he  should  have  a  dis- 
charge. 1  H.  Bl.  657.  Hence  any  agreement  for  securing  to 
one  creditor  more  than  the  others  are  to  receive,  or  to  pay 
money  to  a  creditor  to  induce  him  to  sign  the  debtor's  certifi- 
cate, or  to  induce  him  to  withdraw  his  opposition  to  a  cer- 
tificate, is  fraudulent  and  void,  (a)  And  the  same  doctrine  is 
applied  to  composition  deeds  and  to  voluntary  assignments  for 
the  benefit  of  creditors.  Arnold,  181.  3  Anstr.  910.  4  East, 
372.  4  Bing.  224.  3  Allen,  443.  9  Ind.  430.  8  Met.  227. 
6  M.  &  S.  160.     15  Pick.  49. 

(a)  Holland  v.  Palmer,  1  Bos.  &  Pul.  95.  Sumner  v.  Brady,  1  H.  Bl.  647. 
Robson  V.  Calze,  1  Doug.  228.  Coates  v.  Blush,  1  Cush.  564.  1  Cooke  on 
Bankr.  Laws,  (8th  ed.)  470  §'  seq.  Esp.  on  Law  of  Bankrupts,  316.  Malla- 
lieu  V.  Hodgson,  16  Ad.  &  El.  N.  S.  689.  Wiggin  v.  Bush,  12  Johns.  306. 
1  Story  on  Eq.  §§  378,  379.  Ingraham  on  Insolvency,  104.  Cases  cited  ante, 
241,  notes  (/)  and  {g). 


CHAPTER   V. 

CONSTBUCTION    OF   CONTRACTS. 

As  agreements  derive  their  force  from  the  mutual  assent  of 
the  parties  to  certain  terms,  it  follows  that  the  operation  and 
extent  of  every  agreement  are  to  be  ascertained  from  the  in- 
tention of  the  parties.  This  intention  is  to  be  collected  from 
the  expressions  used  by  the  contracting  parties. 

Fonblanque  defines  interpretation,  or  construction,  to  be  the 
collection  of  the  meaning  of  the  contract  from  the  most  prob- 
able signs.  Powell  says  construction  is  the  drawing  of  an  in- 
ference, by  the  aid  of  reason,  as  to  the  intent  of  a  contract, 
from  given  circumstances,  upon  principles  deduced  from  men's 
general  motives,  conduct,  and  actions,  (a) 

The  necessity  of  rules  of  construction  arises  from  the  im- 
perfection of  language  and  from  the  imperfect  use  of  it  in  those 
instances  in  which  language  wholly  unequivocal  and  explicit 
might  be  selected.  "  If,"  says  Vattel,  "  the  ideas  of  men  were 
always  distinct  and  perfectly  determined  ;  if,  in  order  to  make 
them  known,  they  had  only  proper  terms,  and  none  but  such 
expressions  as  were  clear,  precise,  and  susceptible  of  only  one 
sense,  there  would  never  be  any  difficulty  in  discovering  their 
meaning  in  the  words  by  which  they  would  express  it.  Noth- 
ing more  would  be  necessary  than  to  understand  the  lan- 
guage."    Even  in  this  state  of  things,  however,  it  is  obvious 

(a)  Vattel's  chapter  on  the  interpretation  of  treaties  contains  an  exposi- 
tion, most  of  which  is  applicable  to  contracts  between  individuals,  and  de- 
serves attentive  perusal.  Shcppard's  Touchstone,  ch.  v.,  on  the  exposition  of 
deeds,  and  the  twelvefl-ules  for  the  interpretation  of  agreements,  which  are 
laid  down  by  Pothier,  in  his  treaties  on  the  Law  of  Obligations,  should  be 
studied.     See  also  Rutherforth,  book  ii.  ch.  7. 


CONSTRUCTION.  273 

to  those  who  have  experience  in  the  affairs  of  life,  that  rules 
of  construction  would  be  necessary.  In  contracts  where  more 
than  one  definite  object  is  stipulated  for,  (at  least  wherever  a 
general  object  is  intended  to  be  secured  by  a  stipulation  con- 
cerning a  variety  of  ijarticidars^  it  is  hardly  possible  to  foresee 
every  case  that  will  arise  even  under  the  course  of  events  that 
is  anticipated.  Much  less  can  the  state  of  affairs  be  foreseen 
which  new  conjunctures  and  unexpected  events  will  cer- 
tainly produce.  Yet  it  would  be  injurious  to  both  parties, 
if  the  exact  literal  stipulations  of  a  complicated  contract  were 
to  be  performed,  and  nothing  more ;  and  therefore  it  is  neces- 
sary to  resort  to  construction,  that  is,  to  inductions  drawn 
from  the  general  views  of  the  parties  (as  expressed  in  their 
contract)  with  reference  to  the  existing  circumstances ;  in 
other  words,  to  collect,  from  the  object,  drift,  and  spirit  of 
their  agreement,  what  their  leading  and  paramount  intentions 
were,  and  to  carry  those  intentions  into  effect. 

Thus  it  often  happens  that  a  contract  evinces  a  general  and 
also  a  particular  intent.  The  particular  intent,  perhaps,  can- 
not be  carried  into  effect  at  all ;  or  if  it  should  be,  it  would 
wholly,  or  in  a  great  measure,  defeat  the  general  intent.  In 
such  cases,  though  there  is  no  doubt  of  the  parties'  views,  as 
expressed  in  their  contract,  courts  will  so  construe  their  words 
as  to  give  effect  to  their  general  intent.  This  is  not  only 
reasonable  in  itself,  but  is  also  manifestly  conformable  to  the 
design  of  the  parties,  as  displayed  by  the  general  spirit  of  their 
agreement,  (a) 

The  rules  of  construction  are,  in  general,  the  same  in  law 
and  in  equity ;  {hi)  in  simple  contracts,  and  contracts  by  spe- 
cialty, (c)  But  courts  of  equity  have  greater  powers  than 
courts  of  law,  to  modify  contracts  according  to  subsequent 
exigencies.  It  sometimes  happens  that  courts  of  law  cannot 
afford  an  ample,  or  even  anjj,  remedy  on  a  contract,  on  ac- 
count of  the  necessary  construction  which  they  give  it.      But 

(a)  See  3  Bur.  1634.     2  T.  R.  254.     1  Do«g.  277. 
(J)  2  Bur.  1108.     3  Bl.  Com.  431. 
(c)  13  East,  74,  by  Lord  Ellenborough. 
18 


274  LAW   OF   CONTRACTS. 

a  court  of  chancery  will  enforce  it  cy  pres  :  that  is,  as  nearly 
in  conformity  to  the  terms  of  it,  as  is  practicable ;  ut  res  magis 
valeat  quam  pereaL  This  is  done  at  the  instance  of  the  prom- 
isee, when  he  prefers  a  partial  execution  of  what  he  supposed 
to  be  his  rights,  to  a  total  failure  of  his  claim. 

Language,  however,  is  of  itself  imperfect  and  equivocal ; 
and  the  manner  in  which  it  is  used  often  increases  the  diffi- 
culty of  acquiring  clear  and  definite  notions  of  the  speaker's 
or  writer's  meaning.  Mr.  Locke's  third  book  of  his  Essay 
concerning  the  Human  Understanding  is  as  useful  to  members 
of  the  legal  profession,  as  to  any  other  class  of  scholars ;  and 
his  ninth,  tenth,  and  eleventh  chapters  on  the  imperfection  and 
abuse  of  words,  and  the  remedies  of  those  imperfections  and 
abuses,  are  very  pertinent  to  the  subject  of  contracts  and  the 
interpretation  of  them. 

The  imperfection  and  abuse  of  language  render  it  impor- 
tant that  certain  fixed  canons  of  interpretation  should  be 
adopted,  in  order  to  give  a  uniform  effect  to  the  stipulations 
of  contracting  parties,  who  resort  to  judicial  tribunals  for  the 
enforcement  of  rights  and  redress  of  wrongs  arising  from  con- 
tracts and  the  breach  of  them.  If  rules  of  interpretation 
would  be  necessary,  even  were  language  clear  and  unequivo- 
cal, and  the  ideas  of  the  parties  precise  and  determinate, 
such  rules  become  indispensable,  when  language  itself  is  de- 
fective, and  by  an  abuse  and  ignorance  of  it,  men  involve  their 
agreements  in  what  Mr.  Roberts  terms  "  amphibology  of  dic- 
tion, and  delitescence  of  meaning." 

Only  a  general  statement  of  some  of  the  most  prominent 
rules  of  construction  will  be  here  made,  and  a  few  practical 
illustrations  of  those  rules  be  added. 

The  first  principle  of  construction,  and  that  upon  which 
rest  all  the  rules,  which  will  be  hereafter  mentioned,  is  this, 
namely,  that  the  apparent  intetj^  of  the  parties  shall  be  re- 
garded, so  far  as  the  rules  of  law  will  permit.  Verba  inten- 
tioni,  non  e  contra,  dehent  inservire.  The  purpose  of  construc- 
tion is  io  find  the  meaning  of  the  parties  ;  not  to  impose  it.  («) 

(a)  Plowd.  160.  Shep.  Toucb.  86.  1  Doug.  277.  7  T.  R.  678.  14  Wis. 
105.    See  Fulbecks  Direction,  c,  iv.  viii. 


CONSTRUCTION.  275 

1.  As  a  general  rule,  the  terms  of  a  contract  are  to  be  under- 
stood in  their  ordinary  and  popular  sense,  rather  than  in  their 
strict  grammatical  or  etymological  meaning,  [a) 

But  it  is  as  true  in  law,  as  in  other  subjects,  that  usage  is 
to  govern  in  the  application  of  language.  Consuetudo,  cum 
omnium  domina  rerum,  turn  maxime  verborum  est.  Hence,  there 
is  an  exception  to  the  rule  just  mentioned,  in  those  cases  in 
which  words  have  acquired,  by  usage,  a  peculiar  sense  differ- 
ent from  the  ordinary  and  popular  one.  And  it  is,  in  such 
cases,  immaterial  whether  the  sense,  acquired  by  usage,  be 
the  strict  grammatical  or  etymological  one,  or  one  which  de- 
parts from  all  philological  as  well  as  popular  and  ordinary 
meaning,  and  is  wholly  anomalous. 

BuUer,  J.,  says  a  policy  of  assurance  has  at  all  times  been 
considered,  in  courts  of  law,  as  an  absurd  and  incoherent  in- 
strument ;  but  it  is  founded  on  usage,  and  must  be  governed 
and  construed  by  usage,  (b)  In  the  same  case,  Lord  Kenyon 
said :  "  I  remember  it  was  said,  many  years  ago,  that  if  Lom- 
bard Street  had  not  given  a  construction  to  policies  of  insur- 
ance, a  declaration  on  a  policy  would  have  been  bad  on  gen- 
eral demurrer  ;  but  the  uniform  practice  of  merchants  and  un- 
derwriters had  rendered  them  intelligible."  (c) 

Where,  in  any  case,  language  has  acquired  a  peculiar  mean- 
ing with  reference  to  the  subject  matter  of  a  contract,  that 
meaning  shall  prevail  in  that  particular  case,  (d)  Hence,  mer- 
cantile contracts  are  construed  according  to  the  sense  attached 
by  mercantile  usage  to  the  terms  employed  by  the  parties. 
And  so  of  other  contracts,  not  strictly  mercantile,  if  there  be 
a  usage  which  the  parties  must  be  supposed  to  have  had  in 
view,  when  their  contracts  were  made.  But  this  construction 
cannot  be  allowed  to  prevail,  unless  the  terms  of  the  contract 
are  general,  or  doubtful,  on  the  face  of  them.  If  the  terms 
employed  are  inconsistent  wi#h  the  construction  which  usage, 

(«)  Plowd.  169.  4  East,  135.  3  Dallas,  240.  3  Missouri,  (1st  ed.)  447. 
See  4  Ind.  417,  521.     9  ib.  135.     10  ib.  321,  327. 

(b)  Brough  v.  Whitmore,  4  T.  R.  210. 

(c)  See  also  2  Bos.  &  Pul.  167,  168.     10  Allen,  313. 

((/)  Bridge  v.  Wain,  1  Stark.  R.  504.    Scott  v.  Bourdillion,  2  New  Rep.  213. 


276  LAW   OF    CONTRACTS. 

&c.,  would  give  them,  they  must  have  the  meaning  which  the 
parties  obviously  intended,  (a)  A  commercial  usage  will  be 
considered  as  established,  when  it  has  existed  a  sufficient 
length  of  time  to  have  become  generally  known,  and  to  war- 
rant a  presumption  that  contracts  are  made  with  reference  to 
it.     No  specific  time  can  be  prescribed,  (b) 

So  the  ordinary  and  popular  sense  of  terms  may  be  con- 
trolled by  local  usage  and  understanding,  and  by  the  law  of 
the  place  where  the  contract  is  made,  or  with  reference  to  that 
law.  Ashhurst,  J.,  says :  "  It  may  be  necessary  to  put  a  dif- 
ferent construction  on  leases  made  in  populous  cities  from  that 
on  those  made  in  the  country."  (c)  A  "  pack  of  wool,"  in 
Yorkshire  and  in  Wiltshire  may  perhaps  differ  in  weight ;  and 
the  words  would  be  construed  to  mean  the  one  weight  or  the 
other,  according  to  the  place  where  a  contract  is  made,  (d) 
So  of  "  cotton  in  bales ; "  in  some  places,  compressed  bales 
are  meant  by  these  words ;  in  other  places,  bags  merely,  (e) 
So  if  one  sell  tods,  pounds,  bushels,  yards,  ells,  or  perches,  of 
any  thing,  they  will  be  accounted,  measured,  and  reckoned 
according  to  local  custom.  (/)  But  if  a  particular  measure  is 
established  by  law,  with  a  prohibition  against  using  any  other, 
that  measure  will  be  understood,  notwithstanding  any  local 
usage  to  the  contrary,  (g-) 

The  usages  of  banks,  where  parties  to  notes  and  bills  are 
accustomed  to  transact  business,  are  recognized  by  courts  as 

(a)  2  Stark.  Ev.  (4th  Amer.  ed.)  453  Sf  seq.  3  ib.  1036.  Dickinson  v. 
Lilwall,  4  Campb.  279.  Gibbon  v.  Young,  8  Taunt.  254.  Lewis  v.  Thatcher, 
15  Mass.  433.  Webb  v.  Plummer,  2  B.  &  Aid.  746.  See  8  Met.  576.  12 
Cash.  429. 

(b)  Noble  V.  Kennoway,  2  Doug.  513.  Barber  i7.  Brace,  3  Conn.  9.  Smith 
V.  Wright,  1  Caines,  43.  Rapp  v.  Palmer,  3  Watts,  1 78.  Collings  v.  Hope, 
3  Wash.  C.  C.  150.  Davis  v.  New  Brig,  Gilpin,  486.  Trott  v.  Wood,  1  Gallis. 
443.     See  1  Oldright  (Nov.  Scotia)  259,     10  Allen,  305. 

(c)  2  T.  R.  760.     See  also  1  Doug.  207.     6  Greenl.  225.     21  Pick.  372. 

(d)  1  Evans's  Pothier  (1st  Amer.  ed.)  50,  note  (6).     Shep.  Epit.  172. 

(e)  Taylor  v.  Briggs,  2  Car.  &  P.  525. 

(/)  1  Powell  on  Con.  376.     See  also  Hewet  v.  Painter,  1  Bulst.  174. 
Ig)  Master,  &c.,  of  St.  Cross  v.  Lord  Howard  de  Walden,  6  T.  R.  338. 
Hockin  v.  Cooke,  4  T.  R.  314.     See  also  3  T.  R.  271.    4  ib.  750. 


CONSTRUCTION.  277 

evidence  of  the  assent  of  such  parties  to  those  usages,  and 
therefore  as  giving  a  construction  to  their  contracts  different 
from  the  ordinary  meaning  of  the  terms  employed,  or  implied 
by  law,  in  cases  where  no  such  usages  prevail.  But  a  knowl- 
edge, express  or  implied,  of  the  usage,  must  be  brought  home 
to  the  party  who  is  to  be  affected  by  it.  (a) 

If  words  have  a  known  legal  meaning,  usage  cannot  control 
that  meaning.  To  give  effect  to  a  usage,  in  such  case,  it 
must  be  specially  included  or  referred  to  in  the  contract,  or  the 
words  must  be  explained  in  the  contract  itself,  so  as  to  con- 
form to  the  usage,  (b)  This  rule,  however,  does  not,  it  seems, 
always  hold  in  parol  contracts,  [c) 

Technical  words  in  a  deed  are  to  be  construed  according  to 
their  legal  meaning,  (d) 

2.  Construction  is  to  be  what  the  common  lawyers  term  favor- 
able ;  that  is,  if  the  terms  of  an  agreement  are  susceptible  of 
two  senses,  they  are  to  be  understood  so  as  to  have  an  actual 
and  legal  operation. 

If,  therefore,  the  ordinary  and  grammatical  sense  of  words 
used  in  a  contract  render  it  ineffective  or  frivolous,  they  are 
to  be  construed  according  to  their  less  obvious  and  more  re- 
mote meaning :  Verba  aliquid  operari  debent,  et  cum  effectu 
sunt  accipienda ;  debent  intelUgi  ut  aliquid  operentur.  Thus, 
"  to,"  "  from,"  and  "  until,"  if  used  in  their  strict  and  most 
proper  sense,  are  exclusive  of  the  subject  to  which  they  refer. 
But  if  this  sense  would  render  an  agreement  nugatory,  they 
shall  be  construed  to  include  the  subject,  (e)  The  same  con- 
struction is  to  be  adopted  in  order  to  prevent  contradiction 

(a)  See  Jones  v.  Fales,  4  Mass.  245.  Lincoln,  &c.,  Bank  v.  Page,  9  Mass. 
155.  Whitwell  v.  Johnson,  17  Mass.  449.  City  Bank  v.  Cutter,  3  Pick.  414. 
Renner  v.  Bank  of  Columbia,  9  Wheat.  581.  Mills  v.  Bank  of  U.  States,  11 
ib.  431.  Bank  of  Washington  v.  Triplett,  1  Peters,  25.  Brent's  Ex'rs  v. 
Bank  of  Metropolis,  ib.  89.     Warren  Bank  v.  Parker,  8  Gray,  221. 

(h)  Doew.  Lea,  11  East,  312.  2  Stark.  Ev.  (4th  Amer.  ed.)  455.  3  ib. 
1038.     Sleght  V.  Rhinelander,  1  Johns.  192. 

(c)  Doe  V.  Benson,  4  B.  &  Aid.  588.  Den  v.  Hopkinson,  3  Dowl.  &  Ryl. 
507.     Furley  v.  Wood,  1  Esp.  R.  199.  (</)  4  Watts,  89. 

(e)  See  3  Leon.  211.  5  East,  254-260,  1  Doug.  382.  1  Bur.  285. 
Cowp.  714.     1  T.  R.  490. 


ZIO  LAW    OF    CONTRACTS. 

and  absurdity ;  (a)  also  to  save  a  contract  from  being  void  for 
illegality;  the  lawmaking  no  presumption  against  the  validity 
of  an  agreement.  "  Whensoever  the  words  of  a  deed,  or  of 
the  parties  without  deed,  may  have  a  double  intendment,  and 
the  one  standeth  with  law  and  right,  and  the  other  is  wrong- 
ful and  against  law,  the  intendment  that  standeth  with  law 
shall  be  taken."  {b) 

This  rule  of  favorable  construction  must,  however,  bend  to 
the  intention  of  the  parties  ;  the  purpose  of  it  being,  like  that 
of  all  other  rules  of  construction,  to  give  effect  to  such  inten- 
tion. If  therefore  the  parties  obviously  meant  to  make  a  friv- 
olous, absurd,  or  unlawful  agreement,  they  must  abide  by  the 
legal  consequences. 

3,  The  subject  matter  of  an  agreement  is  to  be  considered 
in  construing-  the  terms  of  it,  which  are  to  be  understood  in 
the  sense  most  agreeable  to  the  nature  of  the  agreement: 
Verba  generalia  restringantur  ad  habilitatem  rei,  vel  aptitudinem 
personce.  (c) 

Thus,  a  stipulation  in  a  policy  of  insurance,  that  a  ship 
shall  "  sail  or  depart  with  convoy,"  is  held  to  mean  "  convoy 
for  the  voyage."  The  subject  matter  of  such  agreement  is  a 
voyage,  and  merely  departing  with  convoy,  and  then  proceed- 
ing alone,  would  be  no  protection  to  the  ship  on  the  voy- 
age, (d)  And  the  captain  must  take  sailing  orders,  or  direc- 
tions as  to  keeping  with  the  convoy,  obeying  signals,  &c. 
Otherwise  the  security  intended  by  convoy  would  not  be  pro- 
cured, (e)  So  a  license  to  load  a  cargo  in  an  enemy's  country, 
and  import  it  into  Great  Britain,  authorizes  a  purchase  of  the 
cargo.  (/)  In  Pen  v.  Glover,  (g)  there  was  a  condition  in  a 
lease,  that  the  lessee  should  not  molest,  vex,  or  put  out  any 

(a)  Carter,  108,  109.  1  Freem.  247.  T.  Ray.  68.  1  Sid.  105.  Finch's 
Law,  52.     Fonbl.  Book  I.  c.  6,  §  18.     Willes,  332. 

(6)  Co.  Lit.  42. 

(c)  1  Powell  on  Con.  377.     1  T.  R.  703.     2  Cush.  283.     3  Allen,  349. 

(d)  JofTeryes  v.  Legendra,  1  Show.  321.     Lilly  v.  Ewer,  1  Doug.  72. 

(e)  Webb  v.  Thomson,  1  Bos.  &  Pul.  5.  Anderson  v.  Pitcher,  2  ib. 
164.  See  8  Met.  96.  46  N.  Ilamp.  255. 

(/)  Fenton  v.  Pearson,  15  East,  419. 
(g)  Moore,  402  andCro.  Eliz.  421. 


CONSTRUCTION.  279 

copyholder,  paying  his  duties  and  services,  under  the  penalty 
of  forfeiture.  The  lessee  entered  into  a  cowhouse  and  beat  a 
copyholder.  A  forfeiture  was  claimed  under  the  word  "  mo- 
lest." But  it  was  held,  that  the  molestation  must  be  such  as 
should  be  an  expulsion,  or  molestation  concerning  the  copy- 
hold tenement ;  that  a  tort  to  the  person  of  a  copyholder  was 
not  intended. 

A  grant  of  common  out  of  all  one's  manor  authorizes  the 
grantee  to. depasture  his  cattle  only  in  commonable  places, 
and  not  in  the  grantor's  garden.  So  a  grant  of  all  trees  grow- 
ing on  a  farm  does  not  extend  to  fruit  trees,  if  there  be  any 
other  trees  on  the  farm,  (a)  A  general  covenant  for  quiet  en- 
joyment of  land  extends  only  to  evictions  and  disturbances 
by  title.  But  a  covenant  to  indemnify  against  a  particular 
person,  by  name,  extends  to  entries  and  disturbances  of  that 
person  by  tort  as  well  as  by  right,  {b)  So  if  the  condition 
of  a  bond  be  that  the  obligor  shall  not  hurt  or  molest  the 
obligee  "  on  any  account,"  it  shaU  be  construed  to  be  a  wrong- 
ful molestatation,  and  not  to  hinder  the  obligor  from  pursuing 
the  obligee  for  crimes  committed  by  him,  or  for  any  other  just 
cause,  (c) 

Under  this  third  rule  of  interpretation  may  also  be  given  the 
following  cases,  where  general  words  are  restrained  by  the  sub- 
ject matter  of  the  contract. 

The  use  and  object  of  a  sweeping  clause  are,  generally,  to 
guard  against  any  accidental  omission  ;  but  it  is  meant  to  re- 
fer to  estates  or  things  of  the  same  nature  and  description  with 
those  that  have  been  before  mentioned,  {d)  A  release  of  all 
demands,  when  a  particular  demand  is  acknowledged  to  have 
been  received,  is  confined  to  the  demand  specified,  (e)  In  2 
Rol.  Ab.  409,  it  is  said,  "  If  a  man  should  receive  <£10,  and 
give  a  receipt  for  it,  and  doth  thereby  acquit  and  release  the 

(a)  1  Powell  on  Con.  377.     Shep.  Touch.  86,  87. 

(h)  Dalison,  58,  pi.  8.     110,  pi.  2.     Chanudflower  v.  Prestley,  Yelv.  30. 
Greenby  v.  Wilcocks,  2  Johns.  1. 
(c)  Dobson  V.  Crew,  Cro.  Eliz.  705. 
\d)  By  Ld.  Mansfield,  Cowp.  12. 
(e)  1  Powell  on  Con.  391  ^-  seq.     1  Domat,  (2d  ed.)  38,  §  21. 


280  LAW   OP    CONTRACTS. 

person  of  all  actions,  debts,  duties,  and  demands,  nothing  is 
released  but  the  .£10  ;  because  the  last  words  must  be  limited 
by  those  foregoing."  Lord  Holt  is  reported  (a)  to  have  de- 
nied this  case  in  Rolle ;  but  Lord  EUenborough  (b)  said,  he 
was  sorry  to  find  that  it  had  been  denied  to  be  law,  because 
it  seemed  to  him  to  be  as  sound  a  case  as  could  be  stated. 
And  it  is  now,  doubtless,  the  settled  law  of  England  and  of 
this  country,  (c) 

But  if  the  general  words  of  release  stand  alone,  without  any 
recital,  or  reference  to  the  subject  matter  on  which  it  is  to 
operate,  the  rule  does  not  apply.  In  such  case,  the  release  is 
taken  most  strongly  against  the  releasor,  (d)  Extrinsic  evi- 
dence cannot  be  admitted  to  explain  the  releasor's  intentions, 
and  to  what  demand  the  release  is  to  be  applied ;  (e)  other- 
wise, of  a  receipt.  (/) 

Where  the  condition  of  a  bond  is  larger  than  the  recital, 
the  recital  shall  restrain  it ;  on  the  principle  that  the  condi- 
tion is  be  confined  to  the  subject  matter.  The  recital  shows 
what  the  subject  matter  is.  "  The  condition  cannot  be  taken 
at  large,  but  must  be  tied  up  to  the  particular  matters  of  the 
recital."  (g-)  Thus,  where  the  condition  of  a  bond  recited  that 
the  obligee  had  made  the  obligor  bailiff  of  the  hundred  of 
Brixto,  and  the  engagement  was  that  the  obligor  should  make 
true  return  of  all  warrants  directed  to  him ;  on  a  suit  upon 
this  bond,  alleging  that  the  obligee  made  a  warrant  to  the 
obligor  to  execute  a  certain  process,  and  that  he  had  not  re- 
turned it,  it  was  held,  on  demurrer,  that  no  cause  of  action 
was  shown  ;  because  the  generality  of  the  condition  must  be 

(a)  1  Show.  155.  (b)  4  M.  &  S.  427. 

(c)  Bac.  Ab.  Release,  K.  Cole  v.  Knight,  3  Mod.  277.  Abree's  case,  Het- 
ley,  15.  Payler  v.  Homersham,  4  M.  &  S.  423.  Lampon  v.  Corke,  5  B.  & 
Aid.  606.  Lyman  v.  Clarke,  9  Mass.  235.  Munro  v.  Alaire,  2  Caines,  329. 
Bac.  Ab.  Release,  I. 

(d)  Thorpe  v.  Thorpe,  1  Ld.  Raym.  235.     Bac.  Ab.  Release,  K. 

(e)  Butcher  u.  Butcher,  1  New  Rep.  113.  Piersoa  v.  Hooker,  3  Johns. 
68. 

(/)  3  Stark.  Ev.  (4th  Amer.  ed.)  1044,   1272.     8  Johns.  389.     9  Johns. 
310.     1  Johns.  Cas.  145.     11  Mass.  32.     4  Greenl.  427. 
(g)  By  Eyre,  J.  Gilb.  Cas.  240. 


CONSTRUCTION.  281 

restrained  by  the  recital,  and  the  defendant  was  liable  only  for 
not  returning  warrants  to  be  executed  within  the  hundred  of 
Brixto  :  Non  constat,  on  these  pleadings,  that  such  was  the 
warrant  w^hich  the  defendant,  as  was  alleged,  had  not  re- 
turned, (a)  After  verdict,  however,  judgment  would  not  be 
arrested  for  such  cause.  It  would  be  intended  that  the  war- 
rant was  directed  to  the  defendant  as  bailiff  of  the  hundred 
for  which  he  was  appointed,  {b)  In  Pearsall  v.  Summersett,  (c) 
the  condition  of  the  bond  recited  that  the  plaintiff  had  ac- 
cepted, indorsed,  &c.,  divers  bills  of  exchange  for  the  accom- 
modation of  W.,  several  of  which  were  outstanding,  and  in 
order  to  indemnify  the  plaintiff,  in  respect  thereof,  from  all 
losses,  charges,  &c.,  the  defendant  stipulated  to  pay  all  that  the 
plaintiff  had  advanced,  or  thereafter  should  advance,  on  ac- 
count of  W.  It  was  held,  that  the  condition  should  be  con- 
fined to  payments  in  respect  to  bills  accepted  before  the  date 
of  the  bond. 

In  a  suit  on  a  bond  reciting  that  J.  had  been  appointed 
deputy  postmaster  for  the  terra  of  six  months,  and  with  a  con- 
dition that  during  all  the  time  he  should  continue  in  that 
office,  he  would  faithfully  perform  the  duties,  &c.,  it  was 
held,  that  the  surety  of  J.  was  not  liable  for  his  default  after 
six  months  had  elapsed,  {d)  So  where  the  condition  of  a  bond 
is  for  the  good  conduct  of  a  person  in  an  office  which  is 
annual,  &c.,  though  the  condition  purport  to  be  commensurate 
with  his  continuance  in  office,  and  he  be  reelected  or  reap- 
pointed, yet  the  obligor  is  liable  only  during  the  continuance 
of  the  office  under  the  first  election  or  appointment;  (e) 
otherwise,  if  the  office  is  not  by  law  an  annual  one,  though 

(a)  Stoughton  v.  Day,  Style,  18  and  Aleyn,  10. 

(ft)  Weston  V.  Mason,  3  Bur.  1727.  (c)  4  Taunt.  593. 

(d)  Arlington  v.  Merricke,  2  Saund.  414,  and  note  (5). 

(e)  Liverpool  Water  Works  v.  Atkinson,  6  East,  507.  St.  Saviour's  v. 
Bostock,  2  New  Rep.  175.  Hassell  v.  Long,  2  M.  &  S.  363.  Bigelow  v. 
Bridge,  8  Mass.  275.  U.  States  v.  Kirkpatrick,  9  Wheat.  720.  Common- 
wealth V.  Fairfax,  4  Hen.  &  Munf.  208.  Commonwealth  v.  Baynton,  4  Dal- 
las, 282.  S.  Carolina  Society  v.  Johnson,  1  McCord,  41.  S.  Carolina  Ins. 
Co.  V.  Smith,  2  Hill,  (S.  C.)  589.  Chelmsford  Co.  v.  Demarest,  7  Gray,  1. 
And  see  Middlesex  Manuf.  Co.  v.  Lawrence,  1  Alien,  339. 


282  LAW   OP   CONTRACTS, 

the  officer  may  be  annually  elected  or  appointed,  (a)  Where 
a  bond  was  given  for  the  fidelity  of  an  accountant  in  a  bank, 
and  that  he  should  continue  in  the  service  of  the  bank  for  two 
years,  the  bond  was  held  to  secure  the  bank  while  the  account- 
ant was  in  their  service ;  the  mention  of  two  years  only  pre- 
venting his  sooner  leaving  the  service,  {h) 

So  if  there  is  a  change  of  parties,  the  obligor  and  his  sure- 
ties are  not  held  on  the  contract.  As  where  a  bond  was  given 
for  the  fidelity  of  a  clerk  of  the  obligee,  and  the  obligee  en- 
tered into  partnership  with  a  third  person,  and  the  clerk  was 
afterwards  guilty  of  misconduct  in  the  partnership  business,  (c) 
So  in  case  of  a  material  variation  in  the  mode  or  extent 
of  transacting  the  business  of  the  obligee,  (d)  So  where  a 
bond  was  given  to  several  persons  as  governors  of  a  voluntary 
society,  with  a  condition  for  the  faithful  collection  and  ac- 
counting, &c.,  of  H.  to  the  obligors,  and  their  successors,  as 
governors,  and  the  society  afterwards  was  incorporated  ;  a  de- 
fault of  H.,  after  the  incorporation,  was  held  not  to  be  covered 
by  the  bond,  (e)  In  Barclay  v.  Lucas,  (/)  on  a  bond  reciting 
that  the  obligees  "  had  agreed  to  take  "  one  Jones  into  their 
service,  and  employ  him  as  a  clerk  in  their  shop  and  counting- 
house,  and  that  the  defendants  had  agreed  to  become  security 
for  his  fidelity,  &c.,  and  the  condition  was  that  Jones  should 
faithfully  account,  &c. ;  it  was  held  that  the  sureties  were 
liable  for  the  misconduct  of  Jories,  after  the  obligees  had  re- 
ceived a  new  partner  into  their  business.  This  decision  was 
made  on  the  ground  that  the  intention  of  the  parties  was  to 
take  and  give  security  to  the  house ;  and  in  England  the 
house  frequently  continues  under  the  original  firm,  though 

(a)  Curling  v.  Chalklen,  3  M.  &  S.  502.  1  New  Rep.  40,  by  Mansfield,  C. 
J.     Dedham  Bank  v.  Cliickering,  3  Pick.  335. 

(h)  Worcester  Bank  v.  Reed,  9  Mass.  267. 

(c)  Wright  V.  Russell,  3  Wils.  530.  And  see  Barker  v.  Parker,  1  T.  R. 
287.     Strange  v.  Lee,  3  East,  484.     Bellairs  v.  Ebsvvorth,  3  Campb.  53. 

(f/)  Bartlett  and  Bowdagc  w.  Attorney  General,  Parker's  Rep.  277,  278. 
Miller  V.  Stewart,  9  Wheat.  680.  Boston  Hat  Manufactory  v.  Messenger,  2 
Pick.  223.     See  also  4  Pick.  314.     Fell  on  Guaranties,  chap.  v. 

(e)  Dance  v.  Girdler,  1  New  Rep.  34.  (/)  1  T.  R.  291,  note. 


CONSTRUCTION.  283 

there  is  a  succession  of  partners.  But  this  decision  has  been 
questioned  by  counsel  and  judges,  and  probably  would  not 
now  be  regarded  as  authority,  except  under  precisely  similar 
facts.  The  case  of  Wright  v.  Russell,  {a)  there  doubted,  has 
been  repeatedly  confirmed.  In  Metcalf  v.  Bruin,  (b)  where  a 
bond  was  given  to  the  trustees  of  a  numerous  and  fluctuating 
body,  called  the  Globe  Insurance  Company,  to  secure  the 
fidelity  of  a  servant  of  the  company  "  during  his  continuance 
in  the  service  of  the  company,"  it  was  held  that  the  actual 
existing  body  of  persons,  carrying  on  the  same  business  un- 
der the  same  name,  were  intended  by  the  bond ;  and  that 
the  obligees,  who  were  trustees  of  the  company,  were  enti- 
tled to  sue  for  a  breach  of  the  bond  by  the  servant,  which 
happened  after  a  change  in  some  of  the  members  of  the 
company. 

But  the  recital  in  the  condition  of  a  bond  does  not  confine 
the  responsibility  of  the  obligor  to  the  limits  of  the  recital, 
where  the  condition  itself  manifestly  is  designed  to  be  ex- 
tended beyond  the  recital.  The  rule  holds  only  in  case  of 
general  terms  consistent  with  the  limitation  expressed,  or  to 
be  collected  from  the  scope  of  the  contract.  Therefore, 
where  the  condition  of  a  bond,  in  addition  to  matter  men- 
tioned in  the  recital,  contained  a  stipulation  for  indemnity 
against  claims  arising  fi*om  acceptances  "  or  any  other  ac- 
count thereafter  to  subsist "  between  the  parties,  it  was  held 
that  a  transaction,  not  specified  in  the  recital,  was  provided  for 
in  the  condition,  (c) 

Guaranties,  or  letters  of  credit,  are  construed  strictly ;  the 
generality  of  the  words  being  restrained  to  the  particular  case 
in  view  of  the  guarantor,  in  all  instances  in  which  such  a 
course  is  not  inconsistent  with  the  terms  employed,  {d)  The 
principle  applied  to  guaranties  is  the  same  which  is  applied 
to  bonds  with  conditions ;  and  the  cases  on  both  species  of 

(a)   3  Wils.  530.  (i)  12  East,  400. 

(c)  Sansom  v.  Bell,  2  Campb.  39.  See  Com.  Dig.  Parols,  A.  19.  Wat- 
son V.  Boylston,  5  Mass.  411. 

(d)  See  Fell  on  Guaranties,  chap.  v.  Melville  v.  Hayden,  3  B.  &  Aid.  593. 
Norton  v.  Eastman,  4  Greenl.  521. 


28-4  LAW    OP   CONTRACTS. 

contracts  are  cited  by  counsel,  and  commented  on  by  courts, 
as  mutual  authorities. 

In  Union  Bank  v.  Clossey,  {a)  it  was  held  that  the  condi- 
tion of  a  bond  that  a  clerk  in  a  bank  should  "  well  and  faith- 
fully perform  the  duties  assigned  to  and  trusts  reposed  in 
him,"  applied  to  his  honesty  only,  and  not  to  his  ability  ;  and 
that  for  a  mere  mistake  of  the  clerk,  his  sureties  were  not 
responsible.  But  in  Minor  v.  Mechanics'  Bank  of  Alex- 
andria, (6)  the  supreme  court  of  the  United  States  decided 
that  a  condition  "well  and  truly"  to  execute  official  bank 
duties,  included  not  only  honesty,  but  reasonable  skill  and 
diligence.  The  supreme  courts  of  Massachusetts,  New  Jersey, 
and  Pennsylvania  have  made  like  decisions,  (f)  "  The  opera- 
tions of  a  bank  require  diligence,  with  fitness  and  capacity,  as 
well  as  honesty  in  its  cashier  ;  and  the  security  for  the  faithful 
discharge  of  his  duties  would  be  utterly  illusory,  if  we  were 
to  narrow  down  its  import  to  a  guaranty  against  personal 
fraud  only."  (c?) 

The  contracts  of  sureties  are  always  strictly  construed; 
and  it  is  not  improbable  that  in  some  of  the  cases  which  have 
been  cited,  a  more  liberal  and  'extended  construction  might 
have  been  given  to  the  stipulations,  if  the  principal  only  had 
been  concerned.  But  the  same  construction  is  given  to  a  bond 
with  sureties,  when  the  principal  is  sued  alone,  as  when  all  are 
sued,  or  the  sureties  only,  (e) 

In  Williams  v.  Jones,  (/)  a  bond,  given  by  G.,  a  postmaster 
appointed  for  three  years,  was  held  to  be  a  security  for  de- 
faults after  the  three  years  expired ;  he  continuing  in  office, 
without  any  new  appointment  or  bond.  But  his  successor 
had  been  obliged  to  give  bond  for  the  arrears  of  G.,  and  had 
taken  out  a  scire  facias  against  G.,  and  afterwards  an  ex- 
tent;  and  he  was  held  to  be  entitled  to  hold  G.'s  land 
against  the  assignee  of  G.,  who  took  it  from  G.  before  the 

(a)  10  Johns.  271.  ('>)   1  Peters,  48. 

(c)  American  Bank  v.  Adams,  12  Pick.  303.  State  Bank  v.  Cbotwood,  3 
Halst.  25.     Barrington  v.  Bal»k  of  Washington,  14  Serg.  &  R.  405. 

(d)  By  Story,  J.,  1  Peters,  69. 

(e)  8  Mass.  276.  (/)  Bunb.  275. 


CONSTRUCTION.  285 

expiration  of  three  years  ;  as  well  for  the  amount  of  G.'s  de- 
fault after  that  time,  as  for  the  small  sura  in  which  G.  was  in 
arrear  when  the  three  years  expired.  If  this  case  be  law,  it 
probably  stands  on  the  ground  of  prerogative,  by  which  the 
crown,  and  its  debtors  and  assignees,  are  placed  on  different 
grounds  from  subjects  in  their  contracts  with  each  other,  (a) 

4.  The  whole  contract  is  to  be  regarded  in  giving  it  a  con- 
struction, and  one  part  is  to  be  interpreted  by  another.  Ex  an- 
tecedentlbus  et  consequentibus  fit  optima  interpretatio.  Turpis 
est  pars,  qiice  cum  suo  toto  non  convenit.  (b) 

Most  of  the  cases,  cited  under  the  preceding  rule,  are  per- 
haps equally  included  in  this. 

In  the  Duke  of  Northumberland  v.  Errington,  (c)  Buller,  J., 
said,  "  It  is  immaterial  in  what  part  of  a  deed  any  particular 
covenant  is  inserted  ;  for  in  construing  it,  we  must  take  the 
whole  deed  into  consideration,  in  order  to  discover  the  meaning 
of  the  parties."  In  that  case,  it  was  held  that  the  general 
words  in  the  beginning  of  the  lessee's  covenant,  "jointly  and 
severally,"  &c.,  extended  to  all  the  subsequent  covenants, 
though  those  words  were  not  repeated  in  every  covenant 
throuofhout  the  deed  :  Because  it  would  not  have  answered 
the  lessor's  purpose  that  the  lessee  should  be  bound  separately 
in  the  subsequent  covenants.  Lord  Alvanley  says,  "  How- 
ever general  the  words  of  a  covenant  may  be,  if  standing 
alone,  yet  if  from  other  covenants  in  the  same  deed,  it  is 
plainly  and  irresistibly  to  be  inferred  that  the  party  could  not 
have  intended  to  use  the  words  in  the  general  sense  which 
they  import,  the  court  will  limit  the  operation  of  the  general 
words.  If  such  an  inference  does  arise  from  concomitant 
covenants,  they  wiU  control  the  general  words  of  an  indepen- 
dent covenant  in  the  same  deed."  (d)     A  very  early  case,  (e) 

(a)  See  The  King  v.  Smith,  Wightwick,  34,  that  the  king  takes  priority 
of  a  purchaser,  in  case  of  debts  of  his  officers  and  receivers.  The  crowfe  has 
a  lien  on  the  officer's  lands,  &c.,  in  case  of  a  contract  by  specialty. 

(b  )  Plowd.  161.  Winch,  93.    1  Domat,  (2d  ed.)  37,  §  10.    Shep.  Touch.  87. 

(c)  5  T.  R.  526.     See  19  Texas,  1.  32  ISIiss.  078. 

(c/)  3  Bos.  &  Pul.  574,  575.     See  Folsom  v.  McDonough,  6  Cush.  208. 

(e)  Broughton  v.  Conway,  Dyer,  240,  Moore,  58  and  Dalison,  58,  pi.  8. 
See  also  Dalison,  110,  pi.  2. 


286  LAW   OF   CONTRACTS. 

illustrates  Lord  Alvanley's  statement.  A  lessor  covenanted 
that  he  had  made  no  former  grant  or  any  thing  whereby  the 
grant  or  assignment  might  be  in  any  measure  impaired, 
hindered,  or  frustrated,  but  that  the  assignee,  by  virtue  of  that 
grant  and  assignment,  might  quietly  have,  hold,  &c.,  without 
any  impediment  or  disturbance  by  him,  or  by  any  other  per- 
son. Dower  was  assigned  to  the  wife  of  a  former  owner  of 
the  leased  premises,  and  a  suit  was  brought  on  a  bond  given 
by  the  lessor  to  perform  the  covenants  in  his  assignment ;  and 
it  was  held  that  the  generality  of  the  latter  covenant  was  re- 
strained by  the  words  of  the  former ;  that  the  lessor  had  cov- 
enanted for  quiet  enjoyment  only  against  other  persons  having 
right  derived  from  him. 

The  leading  judgment,  on  the  application  of  this  rule  is 
that  given  by  Lord  Eldon,  in  the  case  of  Browning  v. 
Wright,  {a)  Parker,  J.,  {h)  termed  it  "  a  triumph  of  common 
sense."  Wright  bargained,  sold,  &c.,  to  Browning,  his  heirs, 
&c.,  a  parcel  of  land,  and  warranted  it  against  himself,  and 
covenanted  that  notwithstanding  any  act  by  him  done  to  the 
contrary,  he  was  seized  lawfully  and  absolutely  in  fee  simple, 
and  that  he  had  a  good  right,  full  power,  &c.,  to  convey.  The 
breach  of  covenant,  alleged  in  the  declaration,  was,  that 
Wright  had  not  good  right,  full  power,  &c.,  to  convey  to  the 
plaintiff,  for  that  one  Child  and  his  wife  were  lawfully  and  right- 
fully seized  of  said  land,  and  had  a  lawful  and  rightful  title 
thereto  not  derived  from  the  plaintiff  (Browning),  and  that  he 
had  been  obliged  to  become  tenant  to  Child  and  wife  ;  and  thus 
lost  his  fee  simple  in  the  estate  conveyed.  It  was  held  that 
the  covenant,  namely,  that  Wright  had  good  right,  lawful  title, 
&c.,  was  either  a  part  of  the  preceding  special  covenant,  or,  if 
not,  that  it  was  qualified  by  the  other  special  covenants  against 
the  acts  of  himself  and  his  heirs  only.  "We  do  not  do  jus- 
tice'to  the  parties,"  said  Buller,  J.,  in  that  case,  "unless  we 
look  to  the  whole  deed,  and  infer  from  that  their  real  inten- 
tion.    The  defendant  has  expressly  told  us,  in  one  part  of  the 

(a)  2  Bos.  &  Pul.  13. 

{b)  8  Mass.  217.  See  also  Stannard  v.  Forbes,  6  Ad.  &  El.  572  and  WlUm. 
Woll.  &  Dav.  321. 


CONSTRUCTION.  287 

deed,  that  he  means  to  covenant  against  his  own  acts ;  and 
are  we  to  say  that  he  has,  in  the  same  breath,  covenanted 
against  the  acts  of  all  the  world  ?  "  (a)  On  the  same  principle 
of  construction,  it  was  held,  where  Lord  Rich,  on  conveying 
land,  covenanted  that  it  was  worth  £1000  per  annum,  and  so 
should  continue,  notwithstanding  any  act  done,  or  to  be  done, 
by  him,»that  the  latter  words  "  any  act,"  &c.,  extended  to 
the  time  when  the  covenant  was  made,  as  well  as  to  future 
time,  (b) 

In  Jackson  v.  Stevens,  (c)  where  the  owner  of  three  fourths 
of  a  tract  of  land  granted  a  moiety  thereof  by  metes  and 
bounds,  with  all  the  estate,  right,  title,  &c.,  which  he  had  "  in 
the  above  described  premises,"  it  was  held  that  a  moiety  only 
passed  by  the  deed. 

In  regard  to  agreements  respecting  a  demise  of  lands,  &c., 
subsequent  words  are  often  held  to  control  prior  ones;  or 
rather  to  show  what  was  intended  by  prior  words.  There  are 
several  cases,  in  which  the  question  was  raised  whether  an  in- 
strument was  intended  for  a  present  demise,  or  a  stipulation 
for  a  lease  in  future,  {d) 

5.  Construction  is  to  be  such  that  the  whole  instrument,  or 
contract,  and  every  part  of  it,  map  take  effect,  if  it  be  possible 

(a)  See  also,  on  this  point,  1  Leigh's  Nisi  Prius,  613,  614.  Foord  v.  Wil- 
son, 8  Taunt.  543  and  2  Moore,  592.  Milner  v.  Horton,  McClel.  644.  Sickle- 
more  V.  Thistleton,  6  M.  &  S.  9.  Sugden  on  Vendors,  ch.  xiii.  Gainsford  v. 
Griffith,  1  Saund.  58,  and  notes.  Howell  v.  Richards,  11  East,  633.  Easta- 
brook  V.  Smith,  6  Gray,  572.  Nind  v.  Marshall,  1  Brod.  &  Bing.  319.  Cole 
V,  Hawes,  2  Johns.  Cas.  203.  Whallon  v.  Kaufman,  19  Johns.  97.  Knicker- 
backer  v.  Killmore,  9  Johns.  106.  Barton  v.  Fitzgerald,  15  East,  530.  Bab- 
cock  V.  Wilson,  17  Maine,  372.     Smith  v.  Compton,  3  B.  &  Ad.  200. 

(b)  Rich  V.  Rich,  Cro.  Eliz.  43.  See  also  Gervis  v.  Peade,  Cro.  Eliz.  615, 
Woodyard  v.  Dannock,  ib.  762.  But  see  Crayford  v.  Crayford,  Cro.  Car.  106. 
Hughes  V.  Bennet,  ib.  495.  Harflet  v.  Butcher,  Cro.  Jac.  644.  It  may  not  be 
easy  to  reconcile  all  these  cases,  with  respect  to  the  application  of  the  rule  of 
construction  above  mentioned ;  but  the  principle  itself  is  recognized  in  each 
one  of  them,  as  well  as  in  others  cited  in  Browning  v.  ^Wright,  2  Bos.  &  Pul. 
13. 

(c)  16  Johns.  110.     Doe  v.  Anderson,  1  Stark.  R.  I.IS. 

((/)  See  Roe  v.  Ashburner,  5  T.  R.  163,  and  previous  decisions  there  cited. 
Bac.  Ab.  Leases,  &c.  K.     1  Piatt  on  Leases,  579  Sj-  seq.     2  Wend.  433. 


288  LAW   OF   CONTRACTS. 

consistently  with  the  rules  of  law  and  the  intention  of  the 
parties,  (a) 

The  last  previous  rule  is  perfectly  consistent  with  this, 
though  it  may  seem,  at  the  first  thought,  to  contradict  it. 
Under  that  rule,  every  part  of  the  agreement  does  take  effect ; 
and  the  effect  intended  by  the  parties.  One  part  is  construed, 
not  destroyed  nor  impaired,  by  the  other.  Words,  used  in  an 
apparently  general  sense,  are  held  to  have  been  intended  in  a 
special  or  restrained  sense,  from  inspecting  the  context,  and 
looking  to  the  effect.  Noscitur  a  sociis.  So  that  the  whole 
and  every  part,  as  the  parts  are  understood  upon  a  view  of  the 
whole,  have  an  effectual  operation.  This  fifth  is,  therefore,  an 
additional,  and  not  a  mere  modifying  rule ;  as  examples  will 
show. 

"  If  I  have  in  D.  blackacre,  whiteacre,  and  greenacre,  and  I 
grant  unto  you  all  my  lands  in  Z).,that  is  to  say,  blackacre  and 
whiteacre,  yet  greenacre  shall  pass  too."  (6)  A  case  is  men- 
tioned in  Savile,  71,  where  C.  C.  leased  land  to  J.  S.  for  twenty- 
one  years,  and  covenanted  that  the  lessee  should  enjoy  the 
land  for  the  term  against  "  the  said  B.  C."  It  was  held,  that 
the  word  "  said  "  should  be  rejected,  because  B.  C.  had  not 
before  been  mentioned  ;  but  that  the  covenant  was  against  the 
interruption  of  B.  C,  if  there  were  any  such  person,  (c)  So 
where  one  Brooks,  who  owned  three  parcels  of  land  (each 
particularly  described  in  the  deed  of  one  Wylie  conveying 
them  to  him)  made  a  deed  of  conveyance,  beginning  his  de- 
scription of  the  land  thus  :  "  Three  parcels  or  lots  situated  in 
Portland,  and  bounded  as  follows,  to  wit,  the  first  lot  begin- 
ning," &c.,  and  setting  forth  the  boundaries  of  that  lot,  and 
then  closing  thus :  "  Being  the  same  which  was  conveyed  to 
me  by  J.  Wylie,  by  deed  dated,"  &c. ;  all  the  three  parcels 
were  held  to  have  passed  by  the  deed ;  {d)  otherwise  the  words 

(a)  Shep.  Touch.  87.     16  Johns.  178.     Randel  v.  Chesapeake  and  Dela- 
ware Canal  Company,  1  Hai'rlngton,  154. 
(6)  By  Lord  Hobart,  Hob.  172. 

(c)  Ought  not  this  to  have  been  regarded  as  a  mere  clerical  error,  a  mis- 
naming of  the  lessor  ? 

(d)  Child  V.  Fitket,  4  Greenl.  471. 


CONSTEUCTION  289 

"  three  parcels  "  would  have  had  no  effect.  To  restrain  the 
meaning  of  "  three  "  to  the  one  particularly  described,  would 
have  been  to  contradict  or  destroy  the  word,  and  not  to  ex- 
pound it.  If  the  deed  had  professed  to  convey  but  one  lot, 
the  reference  to  Wylie's  deed  might  and  ought  to  have  been 
restrained,  according  to  the  fourth  rule,  to  the  description  of 
the  lot  professed  to  be  conveyed.  Or  if  no  reference  had  been 
made  to  Wylie's  deed,  the  first  lot  only  would  have  passed, 
because  there  would  have  been  no  means  of  ascertaining 
where  or  what  the  other  two  lots  were ;  and  then  that  part 
of  the  deed,  which  mentioned  three  lots,  would  have  been 
void  for  uncertainty  as  to  all  but  the  one  described,  according 
to  another  rule  of  construction,  which  will  be  mentioned  here- 
after. So  where  the  owner  of  a  farm,  which  he  held  by  two 
deeds,  one  conveying  to  him  an  undivided  third  part,  and  the 
other  the  residue  thereof,  made  a  mortgage  of  a  tract  of  land 
described  as  being  the  same  mentioned  in  his  first  deed,  to 
which  he  referred  for  a  description,  and  as  being  his  whole 
farm ;  it  was  decided  that  he  had  mortgaged  his  whole  farm, 
and  not  one  third  only ;  that  the  reference  to  the  first  deed  was 
for  description  of  the  land,  and  not  for  the  quantity  of  estate 
or  interest  mortgaged,  (a) 

In  Saward  v.  Anstey,  [h)  the  defendant  covenanted  with  the 
plaintiff  to  pay  an  annuity  on  an  estate  which  he  had  pur- 
chased of  the  plaintiff,  and  to  indemnify  him.  The  annuity 
was  charged  on  the  land  only,  and  not  on  the  occupant,  and 
belonged  to  the  plaintiff's  sisters.  In  a  suit  on  the  covenant, 
for  not  paying  the  annuity,  the  declaration  did  not  aver  that 
the  plaintiff  had  been  damnified.  It  was  contended  that, 
taken  all  together,  the  covenant  was  only  for  indemnity,  and 
that  therefore  no  cause  of  action  was  shown.  But  it  was  de- 
cided otherwise.  For  if  the  clause  of  indemnity  were  to  limit 
the  covenant  for  payment  to  cases  where  the  plaintiff  was 
himself  damnified,  it  would  wholly  destroy  its  effect.  The 
plaintiff  could    not   be    damnified    by  non-payment   of   the 

(a)  Willard  v.  Moulton,  4  Greenl.  14.     And  see  Co.  Lit.  146  a.     Jackson 
V.  Stevens,  16  Johns.  110. 

Qi)  2  Bing.  519  and  10  Moore,  55. 
19 


290  LAW   OF   CONTRACTS. 

annuity.  The  covenant  for  payment  must  therefore  have  been 
intended  for  the  benefit  of  others  (the  plaintiff's  sisters)  for 
whom  he  doubtless  meant  to  provide  the  personal  respon- 
sibility of  the  defendant.  The  covenant  of  indemnity  to  him- 
self was  clearly  useless.  By  the  construction  given  to  the 
contracts,  in  these  three  instances,  every  part  of  them  took 
effect. 

The  old  books  say  that  if  there  be  two  clauses  or  parts  of 
a  deed  repugnant  the  one  to  the  other,  the  first  part  shall  be 
received,  and  the  latter  rejected,  unless  there  be  some  special 
reason  to  the  contrary  ;  but  that  in  the  case  of  a  will  contain- 
ing two  repugnant  clauses  or  parts,  the  first  shall  be  rejected, 
and  the  last  received.  "  The  first  deed  and  the  last  will  shall 
operate,"  is  an  ancient  maxim,  (a)  In  modern  times  this 
maxim  has  very  little  operation.  A  "  reason  to  the  contrary  " 
is  almost  always  found.  The  rules  of  construction  now  ap- 
plied, in  cases  of  repugnancy,  give  effect  to  the  whole  and 
every  part  of  a  will,  deed  or  other  contract,  when  that  is  con- 
sistent with  the  rules  of  law  and  the  intention  of  the  party. 
And  when  this  is  impossible,  the  part  which  is  repugnant  to 
the  general  intention,  or  to  an  obvious  particular  intention,  is 
wholly  rejected.  Parts,  which  were  once  regarded  as  repug- 
nant, are  now  deemed  consistent. 

As  to  wills.  In  Owen,  84,  Anderson,  J.,  says,  conformably 
to  the  old  notion,  "  if  I  devise  my  land  to  J.  S.  and  after- 
wards, by  the  same  will,  I  devise  it  to  J.  D.,  now  J.  S.  shall 
have  nothing,  because  it  was  my  last  will  that  J.  D.  should 
have  it."  This,  however,  is  merely  ill  applied  technicality. 
The  whole  will,  and  each  part  of  it,  is  as  much  the  last 
will,  as  the  last  clause  of  it.  And  the  whole  shall  stand, 
if  it  be  possible  consistently  with  the  testator's  intentions. 
Contradiction  and  repugnancy  are  not  to  be  presumed,  if  in 
any  legal  way  a  consistent  meaning  can  be  found.  In  the 
case  supposed  by  Anderson,  J.,  the  devisees  would  each  take 
a  moiety  of   the  land.      So  where  (b)  legacies  are  given  to 

(a)  Plowd.  541.     Co.  Lit.  112,  b.      Shep.  Touch.  88. 

(b)  See  Wallop  v.  Darby,  Yelv.  209.  Plowd.  541,  in  margine.  Swinb. 
Part  I.  §  5.     Co.  Lit.  112  note  144.     13  Mass.  535.     2  Cush.  114. 


CONSTRUCTION.  291 

several  persons,  in  different  clauses  of  a  will,  if  there  is  a  de- 
ficiency of  assets,  all  must  abate  proportionally,  unless  the 
testator  uses  language  which  shows  a  contrary  intent ;  as,  if 
he  directs  a  particular  legacy  "  to  be  first  paid,"  or  unless, 
from  his  obligation  to  provide  for  a  particular  legatee,  a  con- 
trary intent  is  to  be  inferred. 

As  to  grants  and  other  contracts.  In  grants,  &c.,  if  words 
of  restriction  are  added,  which  are  repugnant  to  the  grant, 
the  restrictive  words  are  rejected.  As  if  one  grant  all  his 
lands,  in  the  whole  town  of  A.,  namely,  in  the  first  parish  ;  all 
the  lands  will  pass,  and  the  scilicet  is  void.  Otherwise,  if  the 
grant  be  of  lands  in  the  town  of  A.,  namely,  in  the  first  par- 
ish, {a)  So  if  there  be  a  demise  of  lands  and  woods,  (de- 
scribed,) except  the  woods,  the  exception  is  void.  Or  a  lease 
for  years  to  O.  and  his  assigns,  provided  he  shall  not  assign ; 
the  proviso  is  void.  But  if  the  scilicet  or  proviso  be  merely 
explanatory,  and  not  repugnant  to  the  grant,  &c.,  the  latter 
shall  be  limited  by  the  explanatory  clause.  As  in  a  feoffment 
of  two  acres,  habendum  the  one  in  fee,  and  the  other  in  tail, 
the  habendum  only  explains  the  manner  of  taking,  but  does 
not  restrain  the  gift.  In  these  last,  and  similar  examples,  the 
substance  of  the  premises  is  not  altered,  {b) 

Whatever  is  expressly  granted,  or  covenanted,  or  promised, 
cannot  be  restrained  or  diminished  by  subsequent  provisos, 
restrictions,  &c. ;  but  general  or  doubtful  clauses  precedent 
may  be  distributed  or  explained  by  subsequent  words  and 
clauses  not  repugnant  or  contradictory  to  the  express  grant, 
covenant,  or  promise,  (c)  Nor  can  subsequent  words  or 
clauses,  repugnant  to  the  express  grant,  demise,  covenant,  &c., 
enlarge  such  grant,  &c.  Thus,  where  in  a  lease  of  land  for 
forty  years,  the  lessor  covenanted  that  the  lessee  and  his  as- 
signs should  enjoy  the  land  for  the  term  of  "  eighty  years 
aforesaid,"  it  was  decided  that  this  covenant  for  enjoyment 

(a)  Hob.  173. 

\h)  See  Hob.  172,  173.  Moore,  880.  Bac.  Ab.  Grants,  I.  1.  Jackson  v. 
Ireland,  3  Wend.  99. 

(c)  See  Cutler  v.  Tufts,  3  Pick.  272. 


292  LAW   OF   CONTRACTS. 

did  not  enlarge  the  term ;  and  the  words  "  eighty  years 
aforesaid,"  were  rejected  as  inconsistent  with  the  demise,  (a) 
So  where  a  rent  of  j£20  was  granted,  issuing  out  of 
certain  lands,  habendum  after  the  decease  of  Ann  Greaves 
and  Thomas  Greaves,  or  either  of  them ;  the  first  payment 
to  be  made  at  a  certain  feast  day  that  should  first  hap- 
pen after  the  death  of  A.  or  T.  Greaves ;  with  a  clause  that 
if  the  rent  should  be  unpaid  at  any  feast  day  named,  the 
grantee,  at  any  time  during  the  joint  lives  of  said  A.  and 
T.  Greaves,  might  distrain,  &c.,  as  no  rent  was  granted  dur- 
ing the  joint  lives  of  these  persons,  the  words  "  during  the 
joint  lives,"  &c.,  were  rejected  as  repugnant.  (6)  So  where 
A.  acknowledged  the  receipt  of  three  hogsheads  of  tobacco  in 
part  of  his  claim  on  B.,  "  he  the  said  A."  to  be  allowed  per 
cent,  the  highest  six  months'  credit  price,  it  was  held  that 
the  words  "  said  A."  should  be  rejected  as  repugnant  to  the 
clear  intent  of  the  parties,  (c)  So  in  all  cases,  doubtless,  of 
the  erroneous  substitution  of  one  party  for  the  other,  in  a 
written  contract,  where  the  error  is  manifest  on  inspection  of 
the  instrument.  This  rejection  of  repugnant  matter  can, 
however,  be  made  only  in  cases  where  there  is  a  full  and 
intelligible  contract  left  to  operate  after  the  repugnant  matter 

(a)  Savile,  71,  pi.  147.      See  Weak  v.  Escott,  9  Price,  595. 

(b)  Crowley  v.  Swindles,  Vaugh.  173.  This  case  was  decided  on  a  demur- 
rer to  a  cognizance  in  replevin,  in  which  the  grant  was  pleaded  according  to 
its  meaning  and  effect,  without  mentioning  the  joint  lives,  &c.  The  plaintiff 
had  oyer,  and  set  forth  the  grant  in  hcec  verba,  and  demurred.  The  cog- 
nizance was  held  good.  The  construction  would  have  been  the  same  if  the 
grantee  had  claimed  the  rent  while  A.  and  T.  Greaves  were  both  alive. 

(c)  Ferguson  v.  Harwood,  7  Cranch,  414.  This  case  also  was  decided  on 
a  question  of  variance  ;  the  pleadings  alleging  the  contract  as  above  stated, 
and  the  contract  itself  being  different.  But  Story,  J.,  said  that  if  the  con- 
tract had  been  as  set  forth,  the  same  result  must  have  been  produced.  The 
cases  of  Vernon  v.  Alsop,  T.  Ray.  68,  1  Lev.  77  and  1  Sid.  105,  and  Mills  v. 
Wright,  1  Freem.  247,  come  within  this  rule  of  construction  ;  where  the  con- 
dition of  a  bond  for  payment  of  money  was  that  the  bond  should  be  void  if 
the  money  was  not  paid.  It  was  wholly  repugnant  to  the  bond  itself;  but  by 
rejection  the  bond  was  left  in  full  force,  as  an  entire  and  perfect  contract. 
See  Finch's  Law,  52.  Stockton  v.  Turner,  7  J.  J.  Marsh.  192.  Gully  v. 
Gully,  1  Hawks,  20.     1  Doug.  384,  by  Duller,  J.     2  Atk.  32. 


CONSTRUCTION.  293 

is  excluded.  Otherwise,  the  whole  contract,  or  such  parts 
of  it  as  are  defective,  will  be  pronounced  void  for  uncer- 
tainty. 

In  those  contracts,  in  which  the  repugnancy  or  ambiguity 
is  apparent  on  the  face  of  the  contract  itself,  if  the  repug- 
nancy, &c.,  be  such  as  renders  the  intention  of  the  parties  un- 
intelligible, the  contract  is  null  and  void.  Parol  evidence  is 
inadmissible  to  explain  a  written  instrument  which  contains 
a  patent  ambiguity.  If  the  rules  of  construction  fail  to  elicit 
the  meaning,  the  parties  are  without  remedy.  But  there  are 
ambiguities  and  repugnancies  which  are  latent ;  and  "  a  latent 
ambiguity,"  says  Lord  Bacon,  "  may  be  holpen  by  averment." 
A  latent  ambiguity  is  one  which  arises  extrinsically  in  the  ap- 
plication of  an  instrument  of  clear  intrinsic  meaning.  As  if 
one  promise  to  pay  John  Smith  a  certain  sum  of  money. 
This  is  clear  on  the  face  of  the  promise  ;  but  there  may  be 
many  men  of  that  name.  This  is  an  extrinsic  fact,  and  parol 
evidence  is  admissible  to  show  to  which  man  of  this  name 
the  promise  was  made.  So  if  one  devise  or  grant  his  land  in 
D.,  the  words  are  unambiguous ;  but  parol  evidence  may  and 
must  be  received  to  show  the  situation,  extent,  &c.,  of  the  land. 
"  Parcel  or  not  parcel  of  the  thing  demised  is  always  matter 
of  evidence."  (a) 

In  conveyances  of  land,  it  is  often  necessary  to  resort  to  ex- 
trinsic evidence  of  the  grantor's  intention.  The  ambiguity 
often  being  latent,  evidence  dehors  the  grant,  &c.,  is  allowed  to 
affect  its  construction.  The  description  of  land  can  be  veri- 
fied or  falsified,  in  part  or  in  whole,  by  inspecting  the  land, 
and  by  comparing  monuments,  courses,  distances,  &c.  There- 
fore, if  the  description  of  an  estate  conveyed  be  sufficient  to 
ascertain  what  was  intended  to  pass,  though,  upon  examina- 
tion, or  upon  inquiry  into  extraneous  matter  of  description, 
the  estate  will  not  agree  with  some  of  the  particulars  of  the 
description,  yet  it  should  pass  by  the  conveyance,  so  that  the 
intention  may  be  effected.  No  peculiar  principle  of  construc- 
tion is  adopted  in  these  cases.     Nor  is  this  application  of  the 

(a)  See  3  Stark.  Ev.  (4th  Amer.  ed.)  1000,  1026.     1  T.  R.  704. 


294  LAW   OF   CONTRACTS. 

common  rules  of  construction  peculiar  to  agreements  respect- 
ing lands.  In  all  agreements,  whatever  be  the  subject  of  them, 
when  there  is  a  latent  ambiguity,  the  same  application  of  the 
principle  is  made. 

As  conveyances  of  real  estate  are  as  frequent  as  almost  any 
other  species  of  contract,  and  are  the  frequent  subject  of  dis- 
cussion in  the  courts,  some  of  the  prominent  rules  and  estab- 
lished canons  of  their  construction  may  properly  be  mentioned 
in  this  connection. 

When  the  description  of  the  estate  intended  to  be  conveyed 
includes  several  particulars,  all  of  which  are  necessary  to  as- 
certain it,  no  estate  will  pass  except  such  as  agrees  with  every 
particular  of  the  description.  As  if  one  grant  all  his  land  in 
his  own  occupation  in  the  town  of  D.,  no  land  passes,  except 
what  is  in  his  own  occupation,  and  is  also  in  that  town. 
Every  part  of  such  grant  takes  effect  by  this  construction,  (a) 
But  if  the  description  is  sufficient  to  ascertain  the  estate,  al- 
though the  estate  will  not  agree  with  all  the  particulars  of  the 
description,  yet  it  will  pass.  As  if  one  convey  his  house  in  D., 
which  formerly  belonged  to  A.  B.,  when  it  never  was  A.  B.'s,  but 
was  C.  B.'s,  the  house  in  D.  shall  pass,  if  the  grantor  had  only 
one  house.  The  description  of  the  house  in  D.  is  sufficient  to 
ascertain  the  building.  The  intention  of  the  parties  is  thus 
effected,  and  the  rejected  part  of  the  deed  is  that  which  can- 
not operate  consistently  with  that  intention.  If,  however,  the 
grantor  had  two  or  more  houses  in  D.,  neither  of  which  ever 
belonged  to  A.  B.,  the  grant  would  be  inoperative,  and  void 
for  uncertainty.  But  if  other  words  of  description  were 
added,  sufficient  to  identify  the  house  intended,  then  it  would 
pass,  on  the  principle  before  mentioned,  though  the  former 
owner  was  misnamed,  {h)  Thus  a  conveyance  "  of  all  that 
my  farm  in  W.,  on  which  I  now  dwell,  containing  one  hun- 
dred acres,  with  my  dwelling  house  and  barn  thereon,  being 
lot  No.  17,  &c.,  bounded,"  &c.,  was  held  to  pass  the  farm  on 

(a)  Plowd.  191. 

(b)  Lambe  v.  Reaston,  5  Taunt.  207.  Vose  v.  Handy,  2  Greenl.  322.  Roe 
V.  Vernon,  5  East,  51.  Doe  v.  Greathed,  8  ib.  91.  Bac.  Ab.  Grants,  H.  1. 
Com.  Dig.  Grant,  E.  13.     See  9  Allen,  113. 


CONSTRUCTION.  295 

which  the  grantor  dwelt,  though  it  was  not  lot  No.  17,  and 
though  the  boundaries  were  mostly  misdescribed.  (a)  See 
Allen  V.  Lyons,  2  Wash.  C.  C.  475.  Winkley  v.  Kaime,  32 
N.  Hamp.  268.     1  Greenl.  Ev.  §  301. 

Where  the  boundaries  of  land  described  in  a  deed  are  fixed 
and  known  monuments,  although  neither  courses,  distances, 
nor  computed  contents  agree  therewith,  the  monuments  must 
govern.  Courses  and  distances  may  be  erroneously  taken  and 
measured  ;  and  computation  of  contents  may  he  inaccurate. 
Fixed  monuments  remain,  and  there  can  be  no  uncertainty 
about  them.  K,  however,  the  monuments  cannot  be  ascer- 
tained, the  length  of  lines  mentioned  in  the  deed  must  govern. 
But  there  may  be  cases,  in  which  it  is  more  reasonable  to  sup- 
pose that  there  is  a  mistake  as  to  the  monuments  referred  to, 
than  in  the  admeasurement  of  the  distances,  when  they  are 
found  to  disagree ;  and  in  such  cases  (which  must  be  few)  the 
admeasurement  shall  determine  the  boundaries,  rather  than 
the  monuments.  (/>) 

If  a  deed  of  conveyance  refer  to  a  monument  not  in  ex- 
istence at  the  time,  and  the  parties  afterwards  erect  it,  with 
the  intention  of  conforming  to  the  deed,  the  monument  will 
govern  the  extent,  though  it  do  not  coincide  with  the  line  de- 
scribed in  the  deed,  (c) 

(a)  Worthington  V.  Hylyer,  4  Mass.  196.  Jackson  v.  Loomis,  18  Johns. 
81.  19  Johns.  449.  In  Flowd.  191,  will  be  found  the  substance  of  the  law 
as  to  the  construction  of  grants.  See  also  Massie  v.  Watts,  6  Cranch,  148. 
Jackson  v.  Wilkinson,  1 7  Johns.  146,  and  cases  there  cited.  Jackson  v.  Clark, 
7  Johns.  217.  The  state  of  titles  in  Kentucky  gave  rise  to  a  course  of  deci- 
sions, and  to  the  adoption  of  rules  of  construction,  which  evince  great  skill 
and  ability  in  the  courts,  and  which  have  nearly  overcome  and  reduced  to 
order  the  confusion  formerly  so  embarrassing  to  claimants  of  land  in  that  por- 
tion of  the  country.  The  most  important  of  these  decisions  may  be  found 
(either  made  or  cited  by  the  supreme  court  of  the  United  States)  in  Cranch 
and  Wheaton.  But  as  the  doctrines  are  chiefly  of  local  application,  though  not 
contrary  to  the  spirit  of  the  common  law  rules  of  construction,  it  seems  hardly 
advisable  to  detail  them  in  this  place.     See  1  Pirtle's  Digest,  113-131. 

(6)  See  Savile,  114.  2  N.  Ilamp.  303.  2  Mass.  380.  6  ib.  131.  3  Pick. 
401.     5  ib.  135.     Cooke,  460.     6  Wheat.  582. 

(c)  Makepeace  v.  Bancroft,  12  Mass.  469.  Lerned  c.  IMorrill,  2  N.  Hamp. 
197.  Waterman  v.  Johnson,  13  Pick.  267.  Kennebec  Purchase  v.  Tiffany, 
1  Greenl.  219. 


296  LAW   OF   CONTRACTS. 

Lands,  granted  as  bounded  on  a  river,  extend  to  the  thread 
of  the  river,  ad  filum  aqu(F^  unless  from  prior  grants  on  the 
other  side  of  the  river,  or  from  the  terms  of  the  gi-ant  in  ques- 
tion, such  construction  is  negatived,  [a)  And  if  there  be  an 
island  in  the  river,  the  line  will  run  in  the  same  manner  as  if 
there  were  no  island.  If,  therefore,  the  island  be  wholly  on 
one  side  of  the  thread  of  the  stream,  it  will  belong  to  the 
owner  of  the  bank  on  that  side  ;  if  in  the  middle  of  the  stream, 
it  will  belong  in  severalty,  one  half  to  each  of  the  riparian 
proprietors.  So  of  any  other  proportions  into  which  the 
island  may  be  divided  by  the  thread  of  the  river.  (6)  And 
the  law  is  the  same  in  case  of  the  accession  of  an  island  in  a 
stream.  It  will  belong  to  the  owners  of  the  banks,  and  they 
will  be  entitled  to  hold  to  the  thread  of  the  river  and  to  divide 
it  pro  modo  et  quantilate  agronim.  [c]  Islands,  however,  are 
the  subject  of  separate  grants,  and  this  doctrine  of  boundaries 
in  grants  of  land  bordering  on  streams  holds  only  where  the 
islands  are  not  otherwise  appropriated. 

This  construction  of  boundaries  is  applied  only  to  land 
bordering  on  streams  not  navigable.  By  the  common  law,  a 
stream  or  inlet  of  the  sea,  is  regarded  as  navigable  only  so  far 
as  the  tide  ebbs  and  flows.  Thus  far,  if  it  can  be  used  by 
water-craft  to  any  useful  purpose,  it  is  technically  navigable. 
All  arms  of  the  sea,  coves,  creeks  and  streams,  where  the  tide 
ebbs  and  flows,  are  the  property  of  the  sovereign,  as  far  as  the 
ordinary  high  water  mark.  But  a  subject  may  acquire  prop- 
erty therein,  by  grant,  or  prescription  which  supposes  a 
grant,  (c?)     See  Phear  on  Rights  of  Water,  11. 

In  running  the  side  lines  of  a  proprietor  on  a  stream  not 
navigable,    they  are    to    be    extended,    from    their    respective 

(a)  Lunt  V.  Holland,  14  Mass.  151.  King  v.  King,  7  ih.  406.  The  King  v. 
Wharton,  12  Mod.  510.     3  Kent  Com.  (11th  ed.)  542  ^  seq.     9  Cush.  495. 

(6)  Ingraham  v.  Wilkinson,  4  Pick.  268,  and  cases  there  cited. 

(c)  Vinnius,  141,  (Amsterdam  ed.  of  1692.)  Heinec.  Pand.  Pars  vi.  §  168. 
Heinec.  Inst.  Lib.  II.  tit.  1,  §  357.     Deerfield  v.  Arms,  17  Pick.  41. 

(<^/)  Davis,  155-158.  4  Bur.  2162.  2  Doug.  441.  4  T.  R.  439.  2  Bos. 
&  Pul.  472.  5  Taunt.  705.  1  Marsh.  313.  1  Pick.  180.  2  Johns.  362.  6 
ib.  133.     21  Pick.  344.     34  Jliss.  36.     34  X.  Hamp.  349. 


CONSTEUCTION.  297 

termini  on  the  shore,  at  right  angles  with  the  course  of  the 
stream,  unless  otherwise  established  by  the  terms  of  his  grant. 
Knight  V.  Wilder,  2  Cush.  199.  A  grant  of  land  bounded  on 
such  stream  conveys  to  the  grantee  a  title  to  the  centre  of  the 
stream,  though  the  monuments  are  described  as  standing  on 
the  bank  or  margin  of  the  stream,  if  the  boundary  afterward 
mentioned  be  "  thence  on  the  stream."  And  this  is  so,  as 
well  in  acts  of  a  legislature  fixing  the  boundaues  of  towns, 
&c.,  as  in  grants  by  individuals.  Coovert  v.  O' Conner,  8 
Watts,  470.  Luce  v.  Carley,  24  Wend.  451.  Noble  v.  Cun- 
ningham, 1  McMullan  Eq.  289.  The  State  v.  Canterbury,  8 
Foster,  195.  Inhabitants  of  Ipswich,  Petitioners,  13  Pick.  431. 
Cold  Spring  Iron  Works  v.  Inhabitants  of  Tolland,  9  Cush. 
492.     See  Morrison  v.  Langworthy,  4  Greene  (Iowa)  177. 

A  conveyance  of  land  described  as  running  "  to  the  Genesee 
River,  thence  along  the  shore  of  said  river,"  was  held  to  pass 
no  part  of  the  bed  of  the  river.     Child  v.  Starr,  4  Hill,  369. 

The  shore,  technically  taken,  is  the  space  between  low  water 
and  ordinary  high  water  mark ;  and  the  same  construction  is, 
of  course,  given  to  a  grant  of  land  bounded  by  the  shore,  [a) 
By  the  civil  law,  "  est  autem  littus  maris,  quatenus  hybernus 
fluctus  maximus  exmrrit.''''  {h)  By  this  law,  also,  the  property  in 
streams  actually  navigable  belonged  to  the  sovereign,  or  public, 
though  the  tide  did  not  ebb  and  flow  therein.  A  conveyance 
of  land  bounded  on  one  side  "  by  the  sea  or  beach,"  includes 
the  land  between  high  and  low  water  mark.  Doane  v.  Will- 
cutt,  5  Gray,  328.     Jerwood  on  Rights  to  Sea  Shores,  98. 

This  last  difference  in  the  two  legal  systems  probably  may 
be  ascribed  to  the  different  size,  &c.,  of  the  fresh- water  rivers  on 
the  continent,  and  on  the  island  of  Great  Britain.  The  Code 
Kapoleon  adopts  the  doctrine  of  the  civil  law.  Flumina  au- 
tem omnia  et  portus,  publica  sunt ;  ideoque  jus  jnscandi  omnibus 
commune  est  in  portu  Jluminibusque,  (c)  Vinnius,  in  his  com- 
mentary on  this  passage  (p.  126)  restricts  the  word  "flumina" 

(fl)  Storer  v.  Freeman,  6  Mass.  435.  Blundell  v.  Catterall,  5  B.  &  Aid. 
294,  304. 

(6)  Justinian,  Inst.  Lib.  II.  tit.  1,  §  3.     5  B.  &  Aid.  292. 
(c)  Justinian,  Inst.  Lib.  II.  tit.  1,  §  2. 


298  LAW   OF   CONTRACTS. 

to  such  streams  as  are  perennial,  and  the  "jus  piscandi  "  to 
the  subjects  of  the  country  "  cujus  fines  flumen  alluit^  et  quate- 
nus  alluitr 

In  Pennsylvania,  North  Carolina,  and  South  Carolina,  the 
civil  law  doctrine  is  adopted  in  regard  to  the  actually  navi- 
gable fresh-water  rivers  in  those  States,  {a)  In  Connecticut, 
New  York,  Massachusetts,  Ohio,  and  Wisconsin,  the  doctrine 
of  the  common  law  is  adhered  to.  (6)    And  see  24  Howard  41. 

The  owner  of  land  adjoining  on  a  stream  not  technically 
navigable,  has,  therefore,  by  the  common  law,  an  exclusive 
right  of  fishery  ad  filum  aquae,  and  may  maintain  a  suit  for  a 
violation  of  this  right,  (c)  But  the  public  has  an  easement  or 
servitude  in  streams  that  will  bear  water-craft  to  any  useful 
purpose  ;  namely,  a  free  right  of  passage. 

The  same  law,  as  to  boundaries  and  right  of  fishery,  doubt- 
less applies  to  cases  of  land  adjoining  small  ponds,  {d)  But 
in  Massachusetts,  by  a  colonial  ordinance  of  1641,  "  for  great 
ponds  lying  in  common,  it  shall  be  free  for  any  man  to  fish 
and  fowl  there,  and  may  pass  and  repass,  on  foot,  through  any 
man's  propriety  for  that  end,  so  they  trespass  not  upon  any 
man's  corn  or  meadow."  It  was  also  provided  in  the  same 
ordinance,  that  "  every  inhabitant,  who  is  an  householder,  shaU 
have  free  fishing  and  fowling  in  any  great  ponds,  bays,  coves, 
and  rivers,  so  far  as  the  sea  ebbs  and  flows  within  the  pre- 
cincts of  the  town  where  they  dwell,  unless  the  freemen  of  the 
town,  or  the  general  court  have  otherwise  appropriated  them." 
To  this  privilege  is  however  added  a  proviso,  that  no  town 
shall  appropriate   to  any  particular  person   any  great  pond 

(a)  Carson  v.  Blazer,  2  Binn.  475.  Shrunk  v.  Schuylkill  Navigation  Com- 
pany, 14  Serg.  &  R.  71.  Wilson  v.  Forbes,  2  Dev.  30.  Injrram  v.  Thread- 
gill,  3  ib.  59.  Cates  v.  Wadlington,  1  M'Cord,  580.  Walker  v.  Shepardson, 
4  Wis.  486. 

{h)  Adams  v.  Pease,  2  Conn.  481.  The  People  v.  Piatt,  17  Johns.  195. 
Hooper  V.  Cummings,  20  ib.  90.  Freary  v.  Cooke,  14  Mass.  488.  Common- 
wealth V.  Chai)in,  5  Pick.  199.     Gavit  v.  Chambers,  3  Ohio,  496. 

(c)   See  cases  last  cited,  and  Waters  v.  Lilley,  4  Pick.  145. 

(i/)  See  Lowell  v.  Robinson,  16  Maine,  357.  Waterman  v.  Johnson,  13 
Pick-  261.  Phinney  t;.  Watts,  9  Gray,  269.  Bradley  v.  Rice,  13  Maine,  201. 
The  State  v.  Gilmanton,  9  N.  Hamp.  461. 


CONSTRUCTION.  299 

containing  more  than  ten  acres  of  land,  &c.  (a)  This  ordi- 
nance altered  the  common  law  in  regard  to^he  right  of  a  sev- 
eral fishery  in  large  ponds,  and  was  designed  to  preserve  to 
the  people  at  large  a  favorite  privilege  and  amusement.  The 
effects  of  the  ordinance  are  clearly  perceptible  at  this  day.  As 
to  fishing,  &c.,  in  tide  waters,  it  seems  to  have  been  intended 
to  restrict  the  right  to  householders  in  the  town  where  the 
waters  were.  But  this  part  of  the  ordinance  is  not  at  all  re- 
garded in  practice,  and  probably  was  never  so  applied  as  to 
restrain  the  common  law  right  of  every  citizen  in  those  waters. 
Otherwise,  it  is  believed,  as  to  ponds,  {b)  Great  ponds,  that 
is,  of  more  than  ten  acres,  have  in  many  instances  become 
private  property.  But  whether  the  owners  can  exclude  all 
other  persons  from  fishing  therein,  is  not  known  to  have  been 
decided.     See  West  Roxbury  v.  Stoddard,  7  Allen,  158. 

Although  the  borderers  on  streams  not  navigable  own  to 
the  centre  of  the  water,  and  have  an  exclusive  right  of  fishery 
to  that  extent,  subject  only  to  the  easement  of  passage  on 
the  water  by  the  public,  yet  the  legislature  of  Massachusetts 
have,  from  the  earliest  period,  made  provision  for  the  passage 
of  fish  from  the  ocean  into  the  ponds  and  streams  above,  and 
have  subjected  the  owners  of  contiguous  land,  of  mills,  &c.,  to 
divers  onerous  duties ;  such  as  keeping  open  fish-gates  on 
their  dams,  &c.  And  this  legislative  power  has  often  been 
judicially  recognized,  (c)  It  is  a  part  of  the  law  of  that  State 
(probably  derived  from  the  ordinance  abovementioned,)  that 
towns  may  appropriate  the  fishery  in  tide  waters  within  their 
limits,  if  not  appropriated  by  the  legislature,  (d)  See  9  Gray, 
503-528. 

The  right  in  the  waters  and  shores  of  the  sea,  and  in  navi- 
gable tide  waters  in  North  America  originally  belonged  to 
the  English  crown.  That  right,  to  a  certain  extent,  passed 
to  the  council,  established  at  Plymouth  in  England,  for  the 

(a)  Ancient  Charters,  &c.  148,  149. 

(&)  See  Sullivan  on  Land  Titles,  284  §-  seq,  2  Dane  Ab.  Ch.  LXVIII. 
10  Cusb.  188.     7  Allen,  167. 

(c)  See  9  Pick.  87.     Not  so  in  New  York.     17  Johns.  195. 

(d)  Coolidge  v.  Williams,  4  Mass.  140. 


300  LAW   OP   CONTRACTS. 

settlement  of  New  England  ;  and  so  far  as  it  respects  Massa- 
chusetts and  M^ne,  the  same  right  was  transferred  to  the 
company  which  undertook  that  settlement ;  and  their  transfer 
was  confirmed  by  the  charter  of  Charles  11.  In  that  charter 
(dated  May  1628),  "  ports,  rivers,  water,  fishing,"  &c.,  were 
fully  confirmed  unto  the  company ;  and  upon  their  establish- 
ing a  government  here,  they  took  the  dominion  of  the  territory, 
and  all  its  franchises  and  privileges,  and  parcelled  them  out  in 
small  divisions.  Thus  the  people  of  the  colony,  in  their  politi- 
cal capacity,  succeeded  to  all  the  territorial  right  that  formerly 
belonged  to  the  English  crown  and  government.  As  the  king 
might  grant  an  exclusive  right  to  a  subject,  in  a  fishery,  or  in 
the  soil  under  navigable  waters,  so  the  colony  succeeding  to 
his  property  and  power,  had  the  same  authority  to  make  like 
grants  to  individuals,  or  to  corporate  bodies.  This  power,  like 
all  other  powers  of  a  kindred  nature,  vested  in  the  legislature 
of  the  colony. 

An  ordinance  of  1647  made  a  material  change  in  the  law 
on  this  subject  of  public  property  in  tide  waters.  And  that 
change  has  continued  till  the  present  time.  For  though 
the  colony  charter  was  annulled  in  1684,  by  a  decree  in 
chancery,  yet  a  new  charter  was  granted  in  1691,  granting 
to  the  inhabitants  of  the  province  of  Massachusetts  Bay,  and 
their  successors,  the  temtory  therein  described,  and  all  "  ha- 
vens, ports,  rivers,  waters,"  &c.  Indeed,  the  laws  of  the  colony 
were  not  affected,  in  fact,  by  the  annulling  of  the  charter, 
whatever  might  have  been  the  strict  legal  theory,  (a)  By 
statutes,  passed  in  1692,  all  the  local  laws  of  Massachusetts 
and  of  New  Plymouth  were  to  remain  and  continue  in  full 
force,  in  the  respective  places,  until,  &c.  {b) 

As  to  shores,  flats,  &c.,  by  the  ordinance  of  1647,  "  it  is  de- 
clared that  in  all  creeks,  coves,  and  other  places  about  and 
upon  salt  water,  where  the  sea  ebbs  and  flows,  the  proprietor 
of  the  land  adjoining  shall  have  propriety  to  the  low  water 
mark,  where  the  sea  doth  not  ebb  above  a  hundred  rods,  and 

(a)  See  6  Mass.  438.  3  Amer.  Jurist,  115,  241.  2  Hutchinson's  History, 
(3d  ed.)  20. 

(h)  Ancient  Cliarters,  213,  229. 


CONSTRUCTION.  301 

not  more  wheresoever  it  ebbs  further"  with  a  proviso  secur- 
ing the  passage  of  boats  or  other  vessels  over  the  water,  (a) 
A  grant  of  land,  therefore,  "  below  high  water  mark,"  if  not 
otherwise  restricted,  will  extend  to  low  water  mark,  if  that  be 
not  more  than  one  hundred  rods ;  and  if  it  be  more,  the  grant 
will  extend  to  that  distance,  (b)  So  if  the  grant  bound  the 
grantee  on  a  cove  or  creek,  or  on  the  salt  water,  sea,  bay,  &c. 
But  the  grantee  cannot  always  claim  the  flats  in  the  direction 
of  the  exterior  lines  of  his  upland,  but  only  in  the  direction 
towards  low  water  mark  from  the  two  corners  of  his  upland 
at  high  water  mark  :    As  in  the  case  of  a  circular  cove,  &c.  (c) 

If  a  grant  bound  the  grantee  upon  the  bank  or  margin  of  a 
stream,  the  stream  itself  is  excluded,  (d) 

When  a  river  is  the  boundary  between  two  nations  or 
States,  if  the  original  property  is  in  neither,  and  there  is  no 
convention  respecting  it,  each  holds  to  the  middle  of  the  river. 
But  when  one  State  is  the  original  proprietor  and  grants  the 
territory  on  one  side  only,  it  retains  the  river  in  its  own  do- 
main, and  the  newly  erected  State,  or  the  old  State  to  which 
the  cession  is  made,  extends  only  to  the  river ;  and  low  water 
mark  is  the  boundary.  This  is  the  law  in  case  of  fresh 
streams,  as  well  as  in  those  in  which  the  tide  ebbs  and 
flows,  (e)  So  it  was  held  in  Handly's  Lessee  v.  Anthony,  (/) 
on  a  claim  to  an  island  in  the  Ohio  Ptiver,  as  part  of  the  ter- 
ritory of  Kentucky ;  the  cession  by  Virginia  describing  the 
territory  as  "  situate,  lying  and  being  to  the  northwest  of  the 
river  Ohio."  So  by  the  cession  of  Georgia  to  Alabama,  the 
western  bank  of  the  river  Chatahochee  is  the  dividing  line 
between  those  States,  {g-') 

In  the  ordinance  for  the  government  of  the  territory  north- 
west of  the  rivjer  Ohio,  passed  July  13,  1787,  it  was  declared, 
that  "  the  navigable  waters  leading  into  the  Mississippi  and 

(a)   Ancient  Charters,  148.     See  7  Cush.  67.     3  Allen,  513. 

(6)  Adams  v.  Frothingbam,  3  Mass.  352.     Austin  v.  Carter,  1  Mass.  231. 

(c)  Eust  y.  Boston  Mill  Corporation,  6  Pick.  158.  See  further,  6  Mass. 
332.    10  ib.  146.     Gray  v.  Deluce,  5  Cush.  9.    Emerson  v.  Taylor,  9  Greenl.  42. 

(d)  Hatch  V.  Dwight,  17  Mass.  298. 

(e)  Vattel,  Book  I.  chap.  22.  (/)  5  Wheat.  374. 
(g)  Alabama  v.  Georgia,  23  Howard,  505. 


302  LAW   OP   CONTEACTS. 

St.  Lawrence,  and  the  carrying  places  between  the  same,  shall 
be  common  highways,  and  forever  free,  as  well  to  the  inhabi- 
tants of  said  territory  as  to  the  citizens  of  the  United  States, 
and  those  of  any  other  States  that  may  be  admitted  into  the 
confederacy,  without  any  tax,  impost,  or  duty  therefor."  (a) 

Generally,  the  public  have  only  an  easement  in  the  land 
over  which  a  highway  or  road  passes;  as  in  rivers  that  are 
actually,  though  not  technically,  navigable ;  and  a  grant  of 
land,  bounding  on  a  highway  or  road,  generally  extends  to 
the  centre  of  the  way.  (b)  And  this  is  so  as  well  in  cases  of 
deeds  bounding  land  on  a  private  as  on  a  public  way.  {c) 

A  deed  bounding  land  on  a  certain  passage  way  "  between 
the  land  hereby  conveyed  and  the  house  of  A,"  excludes  the 
passage  way ;  the  conveyed  land  being  "  external  to  the 
way."  (d)  So  where  in  a  deed  a  line  begins  at  a  stake  on 
the  side  of  the  road,  and  thence  other  lines  are  given  to  said 
road,  and  thence  "  by  said  road  to  the  place  of  beginning," 
the  road  is  excluded,  (e) 

It  was  said  in  Parker  v.  Smith,  17  Mass.  413,  and  in  some 
subsequent  cases,  that  a  deed  bounding  land  on  a  way  is  a 
covenant  by  the  grantor  that  there  is  such  a  way,  and  that 
it  is  not  a  mere  description.  But  a  deed  bounding  land  on 
"  a  thirty  feet  street "  was  held  not  to  amount  to  a  covenant 
that  the  street  is  of  that  width  throughout,  but  to  be  matter  of 
description  only.  (/)  And  in  Howe  v.  Alger,  4  Allen,  206, 
the  previous  cases  were  discussed,  and  a  decision  made,  that 
if  land  is  conveyed  as  bounding  on  a  street,  and  the  grantor 
has  no  interest  in  the  adjacent  land  so  described,  this  does 

(a)  Journals  of  the  old  Congress,  vol.  12,  (Folwell's  ed.)  p.  62.  3  U.  S. 
Laws,  (Story's  ed.)  2077.     5  Ohio,  410. 

(6)  1  Conn.  103.  15  Johns.  454.  2  lb.  357.  Reed's  Petition,  13  N. 
Hamp.  381.  3  Gray,  319.  8  Cush.  595.  3  Kent  Com.  Lecture,  41.  Doe 
V.  Pearsey,  9  Dowl.  &  Ryl.  908  and  7  Barn.  &  Cres.  304. 

(c)  Fisher  v.  Smith,  9  Gray,  441.  Holmes  v.  Bellingham,  7  C  B.  N.  S. 
329. 

((/)  Codman  v.  Evans,  1  Allen,  446.  And  see  Brainard  v.  Boston  &  N.  Y. 
Central  Railroad,  12  Gray,  407.     Smith  v.  Slocomb,  9  Gray,  36  and  11  ib.  280. 

(e)  Phillips  V.  Bowers,  7  Gray,  21.     Sibley  v.  Holden,  10  Pick.  249. 

(/)  Clap  V.  McNeil,  4  Mass.  589. 


CONSTRUCTION.  803 

not  amount  to  an  implied  covenant  that  there  is  such  a  street 
legally  laid  out.  In  that  case,  Dewey,  J.,  said  that  the  whole 
extent  of  the  preceding  cases  is  "  that  a  grantor  of  land,  de- 
scribing the  same  by  a  boundary  on  a  street,  or  way,  if  he  be 
the  owner  of  such  adjacent  land,  is  estopped  from  setting  up 
any  claim,  or  doing  any  acts  inconsistent  with  the  grantee's 
use  of  the  street  or  way ;  and  that  such  estoppel  would  also 
apply  to  his  heirs,  or  those  claiming  under  him." 

A  grant  of  land  described  as  abutting  upon  a  street,  which 
was  merely  laid  down  upon  a  map,  but  not  actually  opened, 
is  not  an  implied  grant  of  way  in  such  street,  nor  a  covenant 
to  open  a  way  there,  (a) 

6.  If  the  u'ords  of  a  contract  do  not  fully  express,  or  even  if 
they  are  contrary  to,  the  evident  intention  of  the  parlies,  the 
intention  is  to  be  preferred  to  the  expression,  {b) 

Thus  the  condition  of  a  bond  of  X200  being  "  to  render  a 
fair,  just,  and  perfect  account  in  writing  of  all  sums  received  " 
was  held  to  be  broken  by  the  obligor's  neglect  to  pay  over 
such  sums.  Lord  Mansfield  said,  it  was  clearly  the  intention 
of  the  parties,  that  the  money  should  be  paid.  Buller,  J.,  said, 
it  never  could  be  meant  that  so  large  a  penalty  should  be 
taken  merely  to  enforce  the  making  out  of  a  paper  of  items 
and  figures,  (c)  So  a  proviso,  that  an  annuity  to  a  married 
woman  should  cease,  if  she  should  "  associate,  continue  to 
keep  company  with,  or  criminally  correspond  with  J.  F.,"  was 
extended  to  all  intercourse,  so  that  J.  F.'s  calling  and  leaving 
his  card  at  the  house,  and  sometimes  being  admitted,  though 
no  improper  behavior  on  his  part,  or  levity  on  hers,  was  shown, 
was  decided  to  be  sufficient  cause  to  stop  the  annuity,  (d)  A 
covenant  that  the  lessee  shall  not  exercise  the  trade  of  a 
butcher  upon  the  demised  premises,  is  broken  by  his  there 
selling  raw  meat  by  retail,  though  no  beasts  were  slaughtered 

(a)  Case  of  Mercer  Street,  4  Cowen,  542.  And  see  Loring  v.  Otis,  7  Gray, 
663.  Walker  v.  City  of  Worcester,  6  ib.  548.  Underwood  v.  Stuyvesant, 
19  Johns.  181. 

(h)  Domat,  (2d  ed.)  37,  §  11.     41  Penn.  State  R.  142. 

(c)  Bache  v.  Proctor,  1  Doug.  382. 

\d)  Dormer  v.  Knight,  1  Taunt.  417. 


304  LAW   OF   CONTRACTS. 

there ;  the  intention  being  to  prevent  the  lowering  of  the  ten- 
ement in  the  scale  of  houses,  by  the  exercise,  whether  wholly 
or  partially,  of  a  trade  which  the  lessor  supposed  would  de- 
preciate its  value  in  future,  (a)  So  a  covenant  by  a  lessee  not 
to  use  or  exercise,  or  suffer  to  be  used  or  exercised  upon  the 
premises,  any  trade  or  business  whatsoever  without  license  of 
the  lessor,  was  held  to  be  broken  by  assigning  the  lease  to  a 
schoolmaster  who  kept  a  school  in  the  house,  (b) 

These,  and  numerous  other  cases,  come  under  the  first  part 
of  the  rule,  namely,  when  the  words  "  do  not  fully  express " 
the  intention  of  the  contracting  parties.  They  might,  perhaps, 
be  as  properly  classed  under  the  third  rule,  that  "  the  subject- 
matter  of  an  agreement  is  to  be  considered  in  construing  the 
terms  of  it,"  &c. 

The  following  examples  fall  under  the  latter  part  of  the 
rule ;  that  is,  where  the  words  are  contrary  to  the  evident  in- 
tent of  the  parties ;  as  Vernon  v.  Alsop,  (c)  and  the  other  cases 
already  mentioned,  where  the  condition  of  a  bond  was  wholly 
contrary  to  the  bond  itself  and  nullified  it ;  and  the  cases  of 
evident  mistake,  cited  under  the  fifth  rule.  So  of  a  note  or 
bill  of  exchange  made  payable  to  the  order  of  a  fictitious  per- 
son, which  is  held  to  be  payable  to  bearer,  (d) 

Posthumus  pro  nato  habetwr.  Therefore  where  one  gave  a 
bond  to  pay  <£900  to  his  daughter,  if  he  should  have  no  son 
living  at  the  time  of  his  decease,  chancery  relieved  against  the 
bond,  upon  its  being  shown  that  there  was  a  posthumous  son 
who  would  receive  less  of  the  obligor's  property  than  the 
daughter,  if  the  bond  should  be  paid,  (e) 

(a)  Doe  V.  Spry,  1  B.  &  Aid.  617. 

(b)  Doe  V.  Keeling,  1  M.  &  S.  95.  See  also  Doe  v.  Worsley,  1  Campb.  20. 
Doc  V.  Laming,  4  Campb.  77.  Tombs  v.  Painter,  13  East,  1.  Quackenbosg 
V.  Lansing,  6  Johns.  49.  For  construction  of  a  covenant  not  to  assign  a  lease 
without  iTcense,  see  2  Selw.  N.  P.  (1st  ed.)  408-412;  3  M.  &  S.  353,  15 
Johns.  278,  3  Pick.  221,  2  Stark.  Ev.  (4th  Am.  ed.)  433,  7  Johns.  227. 

(c)  1  Lev.  77,     1  Sid.  105  and  T.  Ray.  68. 

(d)  Kyd  on  Bills,  (3d  ed.)  208,  268.      Gould  on  Pleading,  c.  iii.  §  180. 

(e)  Gibson  v.  Gibson,  2  Freeman,  223.  See  also  Millar  v.  Turner,  1  Ves. 
Sen.  85.  It  has  long  been  the  statute  law  of  Massachusetts,  that  posthumous 
children  shall  have  the  same  share  in  their  father's  estate,  when  he  makes  a 


co'nstruction.  305 

It  is,  perhaps,  rather  by  legal  operation,  than  by  construc- 
tion, that  a  contract,  "  if  it  will  not  take  effect  that  way  it  is 

will  in  which  they  are  not  provided  for,  as  if  he  had  died  intestate ;  to  be 
taken  proportionally  from  the  devisees  and  legatees  who  claim  under  the  will. 
(Ancient  Charters,  351,  St.  of  1783,  c.  24  ;  Revised  Statutes,  c.  62.)  This 
statute  provision  assumes,  that  if  the  father  die  intestate,  a  posthumous  child 
will  inherit ;  and  such  is  the  common  law.  Introduction  to  Reeve  on  De- 
scents, pages  lii.  liii.  Lands  descend  to  the  children  already  born,  and  vest; 
but  are  devested  by  the  birth  of  a  posthumous  cliild.  This  devesting,  however, 
takes  place,  in  England,  only  when  a  son  is  born,  the  other  children  being 
daughters.  2  Bl.  Com.  211.  In  New  England,  there  is  no  distinction  of  sex 
in  the  law  of  descents. 

In  Reeve  v.  Long,  4  Mod.  282,  (and  in  several  other  books)  the  courts  of 
C.  B.  and  B.  R.  decided  that  a  remainder  to  A's  first  son,  after  a  life  estate 
limited  to  A,  could  not  be  taken  by  A's  posthumous  son.  But  the  House  of 
Lords  reversed  the  decision,  though  all  the  judges  retained  their  first  opinion. 
Thereupon  the  statute  of  10  &  11  W.  HI.  c.  16,  was  passed,  to  enable  posthu- 
mous children  to  take  remainders  limited  to  the  children  of  the  first  or  other 
person  to  whom  the  freehold  is  previously  granted  or  devised.  See  Bac.  Ab. 
Remainder  and  Reversion,  D.  Bui.  N.  P.  105.  Stedfast  v.  NicoU,  3  Johns. 
Cas.  18. 

A  child  in  ventre  sa  mere  is  now  considered  as  born  for  all  purposes  which 
are  for  his  benefit.  Hale  v.  Hale,  Pre.  Ch.  50.  White  v.  Barber,  5  Bur.  2703. 
Doe  V.  Lancashire,  5  T.  R.  49.  Doe  v.  Clarke,  2  H.  B.  399.  Hall  v.  Hancock, 
15  Pick.  255.  Trower  v.  Butts,  1  Sim.  &  Stu.  181.  Heinec.  Pand.  Pars  L 
§§  124, 125,  Pars  V.  §  22.  1  Domat,  (2d  ed.)  277,  §  14.  The  statutes  of  Mas- 
sachusetts assume  that  eff"ectual  provision  may  be  made  by  will  for  such  child ; 
and  the  cases  above  cited  show  that  such  is  the  law. 

Technically,  a  posthumous  child  is  one  who  is  born  after  the  death  of  the 
father.  But  a  child  born  after  the  death  of  the  mother  has  the  same  rights, 
and  is  "  of  the  same  condition  with  other  children."  1  Domat,  (2d  ed.)  20, 
§  7,  8,  &  624,  §  6.  There  is  no  statute  provision  in  Massachusetts  respecting 
childi-en  born  after  the  mother's  death.  If  therefore  a  mother,  having  prop- 
erty, should  die  before  delivery,  the  rights  of  the  child  subsequently  delivered 
(exsectus  vel  editus)  not  technically  bom  (natus),  would  be  wholly  governed 
by  the  common  law.  If  the  father  were  previously  dead,  doubtless  the  child 
would  be  strictly  and  technically  posthumous,  and  clearly  within  the  existing 
statutes.  And  if  the  father  were  alive,  the  child  would  inherit  from  the 
mother ;  and  by  the  civil  law  might  succeed  to  the  property,  pro  rata,  against 
a  will  omitting  to  provide  for  him.  2  Domat,  (2d  ed.)  109,  §  8.  By  that 
law,  a  father  might  disinherit  a  posthumous  child.  If  he  omitted  to  mention 
such  child  in  his  will,  the  will  was  inofiicious,  so  far  as  such  child  was  con- 
cerned. If  he  were  provided  for,  the  will,  &c.,  was  valid,  as  at  common  law. 
2  Domat,  supra.  Just.  Inst.  Lib.  II.  tit.  13.  Justinian  reformed  the  Roman 
20 


806  LAW   OP    CONTEACTS. 

intended,  it  may  take  effect  another  way."  The  general  in- 
tention of  the  parties  is,  in  this  manner,  effected,  though  the 
particular  intention  fails.  This  usually  happens  where  some 
legal  impediment  withstands  the  particular  intent  of  the  par- 
ties ;  (a)  as  in  case,  abovementioned,  of  a  note  or  bill  payable 
to  the  order  of  a  fictitious  person. 

A  freehold  cannot  be  made  to  commence  infuturo.  There- 
fore a  grant  of  land,  by  bargain  and  sale,  from  a  father  to  a 
son,  "  to  h^ve  and  to  hold  after  the  death  of  the  grantor," 
cannot  operate  as  a  bargain  and  sale,  though  so  intended. 
But  it  shall  operate  as  a  covenant  by  the  father  to  stand 
seized  to  his  own  use  during  life,  and  to  the  use  of  the  son 
after  the  father's  death.  Thus  the  son  has  full  title  to  the 
land  after  his  father's  decease,  which  was  the  chief  purpose 
of  the  parties,  {b)  The  same  effect  is  given  to  a  release  at- 
tempting to  convey  a  freehold  infuturo.  (c)  So  a  deed,  meant 
for  a  release,  but  not  legally  operative  as  such,  is  held  to 
operate  as  a  grant,  (d)  A  grant  in  consideration  of  natural 
affection  may  operate  as  a  covenant  to  stand  seized  to  the 
use  of  the  grantee,  (e)  The  words  "  limit  and  appoint  "  may 
operate  as  a  grant  of  a  reversion,  though  intended  as  an  ap- 
pointment of  uses,  but  not  being  sufficient  for  that  purpose.  (/) 
A  release  from  a  trustee  to  his  cestui  que  trust  may  be  con- 
sidered as  a  bargain  and  sale,  (g-)  A  release  to  one  not  in  pos- 
session, does  not,  as  such,  pass  any  estate ;  but  if  made  for  a 
valuable  consideration,  and  registered,  it  will  operate  as  a 
bargain   and   sale,  or   other   lawful   conveyance,  as,  by   the 

law  by  prohibiting  a  parent  from  disinheriting  such  child.  Novel  115.  Did 
this  Novel  extend  to  mothers?     Heinec.  Recit.  Lib.  II.  §  524. 

(a)  Shcp.  Touch.  82.  6  East,  105.  Willes,  686.  Gould  on  Pleading, 
Book  iii.  §§  174-180.     2  Saund.  (5th  ed.)  97  c. 

(b)  Doe  V.  Simpson,  2  Wils.  22.  Wallis  v.  Wallis,  4  Mass.  135.  Doe  v. 
Salkeld,  AVilles,  673.     Doe  v.  Whittingham,  4  Taunt.  20. 

(c)  Roe  V.  Tranmarr,  Willes,  682. 

(d)  Goodtitle  v.  Bailey,  Cowp.  597.  Hastings  v.  Blue  Hill  Turnpike,  9 
Pick.  80. 

(e)  Vanhorn's  Lessee  v.  Harrison,  1  Dallas,  137. 
(/)  Shove  V.  Pincke,  5  T.  R.  124. 

(g)  Jackson  v.  Beach,  1  Johns.  Cas.  399. 


CONSTRUCTION.  807 

Massachusetts  statutes,  the  recording  of  a  deed  duly  executed 
is  equivalent  to  actual  livery  of  seizin,  (a) 

In  these  and  similar  cases,  the  deeds,  which  are  permitted 
to  have  an  operation  different  from  what  was  designed,  must 
be  consistent,  in  their  terms  and  incidents,  with  the  operation 
allowed.  If  the  terms,  &c.,  are  repugnant  to  such  legal  opera- 
tion, the  deed  cannot  have  its  intended  operation.  It  will  be 
void. 

An  agreement  between  a  lessor  and  the  assignee  of  his 
lessee,  that  the  lessor  shall  have  the  premises  as  mentioned 
in  the  lease,  &c.,  shall  operate  as  a  surrender,  (b) 

A  covenant  never  to  sue  shall  operate  as  a  release  or  de- 
feasance, to  prevent  circuity  of  action,  (c)  Aliter,  of  a  covenant 
not  to  sue  within  a  specified  time,  (d)  A  covenant  not  to  sue 
within  a  limited  time,  and  also  that  if  a  suit  be  brought  within 
the  time,  the  cause  of  action  shall  cease,  or  that  the  defendant 
shall  be  discharged  from  the  debt  or  duty,  or  the  plaintiff  shall 
forfeit  the  debt,  will  be  a  bar  to  the  suit.  The  defendant  is 
not  turned  round  to  a  suit  on  the  covenant.  But  if  the  cove- 
nant is  successfully  pleaded  to  a  suit  on  the  original  cause  of 
action,  the  whole  purpose  of  the  covenant  is  answered,  and 
the  covenantee  cannot  maintain  an  action  against  the  cove- 
nantor for  disturbing  him  by  suit,  (e)     Such  covenant,  however, 

(a)  Pray  v.  Pierce,  7  Mass.  381,  Russell  v.  Coffin,  8  Pick.  143.  See  also  6 
Mass.  32.  3  Pick.  521.  4  Mason,  45.  7  Mass.  494.  Stearns  on  Real  Actions, 
12,  13.     2  Saund.  97,  note. 

(&)  Smith  y.  Mapleback,  1  T.  R.  441.  Lord  Hale  and  his  associates,  1  Vent. 
141,  approved  of  Lord  Hobart's  commendation  of  judges  that  are  curious  and 
almost  subtile  (as(uti)  to  invent  reasons  and  means  to  make  acts  effectual 
according  to  the  just  intent  of  the  parties.  Hob.  277.  And  C.  J.  Willes 
says,  "  Judges,  in  these  later  times,  have  (and  I  think  very  rightly)  gone  fur- 
ther than  formerly,  and  have  had  more  consideration  for  the  substance,  to  -wit, 
the  passing  of  the  estate  according  to  the  intention  of  the  parties,  than  to  the 
shadow,  to  wit,  the  manner  of  passing  it."  Willes,  684,  referring  to  3  Lev. 
372. 

(c)  Deux  V.  JefFeries,  Cro.  Eliz.  352.     2  Saund.  48,  note  (1). 

{(l)  Deux  17.  Jefferies,  Cro.  Eliz  352,  2  Saund.  48,  note  (1).  Clarivil  v.  Ed- 
wards, 1  Show.  331.  Perkins  v.  Oilman,  8  Pick.  229.  Garnett  u.  Macon,  2 
Brock.  185.     Bac.  Ab.  Release,  A.  2. 

(e)  White  v.  Dingley,  4  Mass.  433.  See  Upham  v.  Smith,  7  Mass.  265,  8 
Johns.  58.     Bac.  Ab.  Pleas  and  Pleadings,  L  7. 


308  LAW   OF   CONTRACTS. 

is  not  a  bar  to  a  suit  on  the  original  cause  of  action,  when  it 
is  made  with  one  of  two  or  more  joint  contractors ;  for  it 
would  defeat  the  intention  of  the  parties,  (a)  A  covenant  never 
to  sue  one  of  two  or  more  joint  or  joint  and  several  obligors 
or  promisors  does  not  operate  as  a  release  ;  for  a  release  of 
one,  in  such  case,  is  a  release  of  all,  and  the  intention  is  not 
to  discharge  the  debt,  but  to  exempt  one  of  the  parties  from 
liability.  The  only  remedy  of  the  covenantee,  if  afterwards 
sued,  is  on  his  covenant,  (b)  In  12  Mod.  415,  Holt,  C.  J.,  is  re- 
ported to  have  said  that  a  covenant  not  to  sue  for  a  specified 
time  is  a  defeasance.  If  it  be  so,  it  might  be  pleaded  in  bar 
to  a  suit  brought  within  the  time.  But  the  law  is  clearly 
otherwise,  {c)  If,  however,  there  be  in  such  covenant  a  provi- 
sion that  the  covenantee  may  plead  it  in  bar  of  a  suit  com- 
menced before  the  time  has  elapsed,  the  law  may  be  different. 

A  license  to  enclose  common  may  operate  as  a  release  of 
common,  if  so  intended  ;  for,  as  a  license,  it  is  determined  by 
the  death  of  the  party  granting  it.  (d)  Licenses,  that  convey 
any  interest  in  land,  must  be  by  deed ;  and  Parker,  C.  J.,  says 
"  they  are  considered  as  leases,  and  must  always  be  pleaded  as 
such."  (e)  But  in  Bacon's  Abridgment  (/)  it  is  said,  "  If  one 
license  another  to  enjoy  such  a  house  or  land  till  such  a  time, 
this  amounts  to  a  present  and  certain  lease  or  interest  for  that 
time,  and  may  be  pleaded  as  such,  though  it  may  be  also 
pleaded  as  a  license." 

A  perpetual  license  in  form  would  doubtless  operate  as  a 
grant  of  an  easement,  and  might  be  pleaded  as  a  grant.  In- 
deed a  prescriptive  right  rests  on  the  presumption  of  a  grant ; 
and  so  does  the  right  acquired  by  adverse  enjoyment  for  twenty 

(a)  Hutton  v.  Eyre,  6  Taunt.  289.     Garnett  v.  Macon,  2  Brock.  185. 

(b)  March,  95.  Fitzgerald  v.  Trant,  11  Mod.  254.  Lacy  v.  Kynaston,  12 
Mod.  415,  551,  Dean  v.  Newhall,  8  T.  R.  168.  Shed  v.  Pierce,  17  Mass.  623. 
Tuckerman  v.  Newhall,  ib.  581.  Harrison  v.  Close,  2  Johns.  448.  Walker  v. 
McCulloch,  4  Greenleaf,  421.  See  also  Brooks  v.  Stuart,  1  P.  &  Dav.  615 
and  9  Ad.  &  El.  854. 

(c)  See  Aloff  r.  Scrimshaw,  2  Salk.  573,  and  the  cases  above  cited. 

(d)  Semb.    Miles  v.  Etteridge,  1  Show.  349. 

(e)  11  Mass.  538. 

(/)  Bac.  Ab.  Leases,  &c.,  K.     Pleas  and  Pleadings,  L  7. 


CONSTRUCTION.  309 

years.     These  rights,  however,  are  not  often  pleaded  as  acqui- 
sitions by  grant. 

It  is  a  rule  of  pleading,  that  things  must  be  pleaded  accord- 
ing to  their  legal  operation.  But  where  a  thing  may  operate 
in  two  ways,  at  the  election  of  the  party,  he  may  plead  it  in 
one  way  or  the  other,  according  to  his  election,  as  in  the  case 
of  a  license,  before  mentioned. 

7.  The  time  when  a  contract  was  made  is  to  be  regarded  in 
expounding  it;  and  contemporaneous  exposition  is  of  great 
weight  in  construction. 

"  Every  grant  shall  be  expounded  as  the  intent  was  at  the 
time  of  the  grant.  As,  if  I  grant  an  annuity  to  J.  S.  until  he 
be  promoted  to  a  competent  benefice,  and  at  the  time  of  the 
grant  he  was  but  a  mean  person,  and  afterwards  is  made  an 
archdeacon,  yet  if  I  offer  him  a  competent  benefice  accord- 
ing to  his  estate  at  the  time  of  the  grant,  the  annuity  doth 
cease."  (a)  But  a  written  agreement  cannot  be  controlled  by 
a  contemporaneous  oral  understanding  of  the  parties,  which  is 
inconsistent  with  it.  {b) 

Ancient  grants  are  to  be  expounded  as  the  law  was  at  the 
time  of  making  them,  (c)  Modern  methods  of  conveyancing 
are  not  to  be  construed  to  affect  ancient  notions  of  equity,  {d) 
So  the  state  of  the  country,  and  of  the  manners  of  society,  is 
to  be  regarded,  in  expounding  contracts.  Thus,  in  Adams  v. 
Frothingham,  (e)  where  a  vote  of  the  town  of  Newbury  came 
in  question,  "  granting  W.  Noyes  a  piece  of  land  below  high 
water  mark,  to  set  a  shop  upon,  and  not  exceeding  forty  feet 
in  the  front,"  the  question  was  whether  the  lot  should  extend 
back  to  low  water  mark,  or  only  to  a  distance  sufficient  to 
accommodate  a  shop.  The  vote  was  passed  in  1680.  The 
court  held  that  the  lot  extended  to  low  water  mark ;  though 
such  words,  in  a  recent  grant,  in  times  of  precision  and  accu- 
racy, and  when  flats  have  become  valuable,  might  receive  a 

(a)  By  Wray,  C.  J.,  Cm  Eliz.  35.     See  1  Sneed,  141. 
(6)  7  Blackf.  432. 

(c)  Co.  Lit.  8  h.     Amb.  288. 

(d)  See  remarks  of  Spencer,  J.,  16  Johns.  23. 

(e)  3  Mass.  360. 


310  LAW   OF    CONTRACTS. 

different  construction.  It  was  also  supposed,  from  the  state 
of  the  times  and  the  country,  that  the  proprietors  of  Newbury 
desired  to  settle  the  township,  and  to  afford  advantageous 
situations,  on  the  river,  to  the  settlers.  The  court  also  relied, 
in  part,  upon  the  fact  that  those,  who  occupied  under  Noyes's 
grant,  claimed  and  used  the  flats,  as  they  needed  them,  for 
nearly  a  century,  without  complaint  from  the  grantors ;  and 
thus  a  practical  construction,  by  both  parties,  had  been  given 
to  the  grant,  sufficient  to  remove  any  doubts  that  might  have 
arisen  from  its  terms.  This  practical  construction  of  the  par- 
ties, immediately  after  the  grant,  is  what  is  generally  called 
contemporaneous  exposition,  which  is  said  to  be  optima  etfor- 
tissima  in  leg-e.  (a) 

Where,  in  a  deed  given  in  1694,  the  grantor  gave  the  priv- 
ilege of  cutting  timber,  for  the  purpose  of  building  on  the 
premises,  from  his  woods,  it  was  held  that  it  might  be  shown 
that  the  grantee  and  his  heirs,  with  the  knowledge  of  the 
grantor  and  his  heirs,  had  cut  wood  for  the  purpose  of  erect- 
ing fences  upon  the  premises ;  in  order  to  evince  the  intention 
of  the  parties  to  apply  the  word  "  building"  to  the  making 
of  fences,  as  well  as  to  the  erection  of  houses,  &c.  {b) 

It  is  an  established  rule,  that  where  the  language  of  ancient 
instruments  is  obscure,  or  their  construction  doubtful,  usage 
may  be  resorted  to,  as  it  is  the  best  practical  exposition  of  the 
parties'  meaning.  In  Attorney  General  v.  Parker,  {c)  Lord 
Hardwicke  said :  "  In  the  construction  of  ancient  grants  and 
deeds,  there  is  no  better  way  of  construing  them  than  by  usage, 
and  contemporanea  expositio  is  the  best  way  to  go  by." 

In  Cooke  v.  Booth,  {d)  on  a  demise  for  the  lives  of  A.  B.  and 
C.  it  was  covenanted  that  if  A.  (the  lessee,)  his  heirs,  &c., 
should  choose,  upon  the  death  of  B.  and  C,  or  either  of  them, 

(a)  See  Branch's  Maxims,  (Hening's  ed.)  30.  Codiuan  v.  Winslow,  10 
Mass.  149. 

Q))  Livingston  v.  Ten  Broeck,  16  Johns.  14.  See  also  Jackson  v.  Wood, 
13  Johns.  346. 

(c)  3  Atk.  577.  See  also  Withnell  v.  Gartham,  6  T.  R.  888.  Weld  v. 
Hornby,  7  East,  199,  by  Lord  EUenborough. 

((/)   Cowp.  819. 


CONSTRUCTION.  311 

to  surrender  and  take  a  new  lease,  and  add  a  new  life,  in  lieu 
of  the  life  so  dying,  the  lessor,  his  heirs,  &c.,  would  grant  a 
new  lease  for  the  lives  of  the  substituted  persons,  under  the 
same  rent  and  covenants  as  in  the  original  lease.  There  were 
several  renewals  of  the  lease,  and  in  each  instance  there  was 
a  similar  covenant  for  renewal.  The  court  held  that  the  par- 
ties had  put  their  own  construction  on  the  covenant,  and  that 
it  was  therefore  to  be  regarded  as  a  covenant  for  perpetual 
renewal.  But  this  case  has  been  impeached  upon  all  occa- 
sions, and  is  overruled  by  the  judgment  of  the  court  of  ex- 
chequer chamber,  in  Iggulden  v.  May.  (a)  The  decision  in  the 
exchequer  chamber  proceeded  on  the  ground  that  the  covenant 
in  the  lease  was  not  intended  for  a  covenant  of  perpetual 
renewal ;  that  the  words  were  not  such  as  to  warrant  that 
construction ;  in  short,  that  there  was  no  room  left  for  doubt, 
on  the  face  of  the  instrument,  what  was  the  intention  of  the 
parties.  Lord  Ellenborough  (7  East,  242,)  said,  "  If  the  con- 
tinued grant  of  successive  leases,  and  not  the  grant  of  one 
only,  were  intended,  it  is  natural  to  expect  that  words  should 
have  been  used  distinctly  marking  a  right  of  repeated  renewal, 
instead  of  expressions  more  immediately  applicable  to  the  case 
of  a  single  additional  lease."  And  this  is  the  settled  and  only 
proper  doctrine,  namely,  that  usage,  or  contemporaneous  ex- 
position is  not  to  be  called  in  aid,  when  the  language  of  a 
contract  is  clear  and  precise,  but  only  where  it  is  equivocal  or 
doubtful,  [b)  This  rule  of  construction  applies  to  ancient  char- 
ters granted  to  corporations,  as  well  as  to  grants  to  individuals. 
Charters  are  contracts  between  the  crown,  or  the  state,  and 
other  persons,  whether  corporate  or  unincorporate,  to  whom 
they  are  granted,  (c) 

(a)  2  New  Rep.  449  and  7  East,  237,  and  before  Lord  Eldon,  in  chancery, 
9  Ves.  325.  See  also  Tritton  v.  Foote,  2  Cox.  174.  Rubery  w.  Jervoise,  1  T. 
R  229. 

(6)  By  Spencer,  J.  16  Johns.  23.  Peake  on  Ev.  (2d  ed.)  119.  3  Stark. 
Ev.  (4th  Amer.  ed.)  1031.     Cortelyou  v.  Van  Brundt,  2  Johns.  357. 

(c)  See  Blankley  v.  Winstanley,  3  T.  R.  279.  The  Kiug  v.  Bellringer,  4 
ib.  810.  The  King  v.  Osbourne,  4  East,  327.  Rex  v.  Varlo,  Cowp.  250. 
Mayor,  &c.  of  London  v.  Long,  1  Campb.  22.  Evans's  Pothier,  (1st  Am.  ed.) 
189  ^  seq. 


312  LAW   OP   CONTRACTS. 

In  construing  ancient  statutes,  the  court  constantly  resort 
to  contemporaneous  exposition,  (a)  Indeed,  most  of  the  rules, 
which  are  adopted  for  the  construction  of  contracts,  are  ap- 
plicable to  the  construction  of  statutes ;  and  for  the  same 
reason,  namely,  that  they  equally  tend  to  give  effect  to  the 
intention  of  the  makers,  (b) 

8.  W7ien  terms  are  doubtful  or  ambiguous,  they  are  to  be 
taken  most  strongly  against  the  person  engaging.  Verba  char- 
tarum  fortius  accipiuntur  contra  proferentem.  "  A  grant  shall 
be  construed  most  strongly  against  the  grantor,"  &c.  (c)  This 
rule,  however,  applied  only  to  deeds  poll,  because  the  words 
of  an  indenture  were  regarded  as  the  words  of  each  party 
alike,  {d) 

The  rule  of  the  civil  law  is  the  same  in  terms,  but  directly 
the  reverse  in  its  meaning  and  operation.  By  the  form  of 
contracting,  in  that  law,  the  words  of  a  stipulation  were  those 
of  the  party  to  whom  the  engagement  was  made.  The  party 
promising  only  assented  to  the  question  proposed  by  the  party 
stipulating,  (e) 

There  seems  to  be  little  of  good  sense,  or  of  principle,  in 
the  maxim,  as  it  originally  stood,  either  in  the  common  or 
civil  law.  The  assent  of  two  or  more  minds  is  necessary  to 
constitute  a  contract;  and  there  is  great  force  in  the  argument 
of  Serjeant  Catline,  in  Plowden,  140,  namely,  "what  difference 
is  there  when  the  lessor  saith,  '  I  will  have  twenty  shillings 
yearly  for  the  land,'  and  the  lessee  agrees  to  it,  and  when  the 
lessee  says,  '  I  will  give  you  twenty  shillings  yearly  for  the 
land,'  and  the  lessor  agrees  to  it?  Certainly,  there  is  no  dif- 
ference at  all.  For,  in  contracts,  it  is  not  material  which  of 
the  parties  speaks  the  words,  if  the  other  agrees  to  them  ;  for 

(a)  Sheppard  v.  Gosnold,  Vaugh.  169.  Rogers  v.  Goodwin,  2  Mass.  475. 
Packard  v.  Richardson,  17  ib.  144.  Stuart  v.  Laird,  1  Cranch,  299.  McKeen 
V.  Delancy's  Lessee,  5  ib.  22. 

(6)  Bac.  Ab.  Statute,  L  Com.  Dig.  Parliament,  R.  10-29.  Dwarris  on 
Statutes,  (2d  cd.)  c.  ix.  &  x. 

(c)  Shep.  Touch.  87,  88.     Plowd.  171.     Co.  Lit.  197  a. 

(d)  Plowd.  134.     2  Bl.  Com.  384. 

(e)  Ilcinec.  Pand.  Pars  vii.  tit.  1.  1  Domat,  (2d  ed.)  37,  §§  13-15.  1 
Evans's  Poth.  (1st  Amer.  ed.)  50,  note. 


CONSTRUCTION.  313 

the  agreement  of  the  minds  of  the  parties  is  the  only  thing  the 
law  respects  in  contracts."  The  rule,  however,  did  exist,  and 
was  upheld  by  the  notion,  that  the  terms  of  the  agreement 
were  to  be  regarded  as  the  words  rather  of  the  promisor,  by 
the  common  law,  and  of  the  promisee,  by  the  civil  law. 

In  the  common  law,  this  rule  of  construction,  at  the  present 
day,  has  a  very  limited  operation,  and  amounts,  in  effect,  to 
nothing  more  than  this,  namely,  that  in  a  case  of  doubtful  or 
ambiguous  terms,  tlie  party  promising  shall  be  held  to  perform 
so  much  as  to  make  the  terms  of  his  engagement  operative, 
according  to  the  spirit  of  those  terms,  ut  res  magis  valeat  quam 
pereat.  The  rule  was  always  subject  to  all  the  preceding 
rules  that  have  been  mentioned.  They  were  first  to  be  ap- 
plied, and  this  resorted  to,  only  when  they  all  failed ;  which 
would  seldom  happen.  «'  This  being  a  rule  of  some  strictness 
and  rigor,"  says  Lord  Bacon,  "  doth  not  as  it  were  its  office, 
but  in  the  absence  of  other  rules,  which  are  of  some  equity 
and  humanity."  {a)  And  it  never  was  applied  in  cases  where 
the  contract  contained  anything  in  its  nature  odious,  or  un- 
equally burdensome  ;  as,  in  case  of  a  penalty,  &c.  [b)  Nor 
where  it  would  operate  as  a  wrong  upon  third  persons.  Thus, 
although  where  the  owner  of  an  estate  in  fee  makes  a  lease 
for  life,  without  expressing  for  whose  life,  it  shall  be  intended 
for  the  life  of  the  lessee,  as  most  favorable  to  him  ;  yet  it  is 
otherwise,  if  such  lease  be  given  by  a  tenant  in  tail ;  for  if  it 
were  to  be  construed  for  the  life  of  the  lessee,  it  might  injure 
the  reversioner,  (c) 

In  case  of  a  grant,  &c.,  by  the  king  or  government,  the  rule 
of  construction  is  reversed,  and  the  grant  is  taken  most  bene- 
ficially for  the  grantor,  {d) 

Subject  to  these  modifying  remarks,  this  rule  of  construing 
an  agreement  most  strongly  against  the  promisor,  has  still 
some  operation  in  practice,  though  a  very  limited  one.     In 

(a)  See  1  Powell  on  Con.  395.     1  Ev.  Poth.  (1st  Amer.  ed.)  52. 
\V)   1  Powell  on  Con.  397  ^-  seq. 

(c)  Co.  Lit.  42,  183. 

(d)  2  Bl.  Com.  351.  2  Wooddeson,  307.  Jackson  v.  Reeves,  3  Caines, 
296. 


814  LAW  OF   CONTRACTS. 

Adams  v.  Frothingham,  (a)  and  in  Worthington  v.  Hylyer,  (b) 
the  court  would  have  adopted  this  rule  (as  they  declared)  in 
order  to  give  the  party  his  full  justice,  if  other  rules  had  not 
been  found  sufficient  for  the  purpose.  It  is  said  in  the  books 
that  under  this  rule  falls  that  class  of  cases,  in  which  the  mas- 
culine is  held  to  include  both  sexes,  and  the  indefinite  is  con- 
strued to  be  universal,  (c)  All  these  cases,  however,  seem 
fairly  to  come  under  some  of  the  preceding  rules  of  construc- 
tion, as  the  fourth,  respecting  the  subject  matter,  or  the  sixth, 
by  which  the  intention  is  to  be  preferred  to  the  expression, 
when  the  words  do  not  express  the  evident  intention. 

Where  a  release  of  all  lands,  &c.,  belonging,  used,  occupied, 
and  enjoyed,  or  deemed,  taken,  or  accepted  as  part  of  clock 
mills,  was  given  to  the  plaintiff,  it  was  held  that  leasehold 
lands,  within  the  description,  passed  by  the  release,  though  a 
release  was  a  conveyance  adapted  to  freehold  estates  ;  an  as- 
signment being  the  proper  conveyance  of  a  term  for  years,  (d) 
The  court  held  that  the  rule  applied,  in  this  case,  that  the  deed 
should  be  construed  most  strongly  against  the  grantor.  Oth- 
erwise, the  defendant  would  have  been  enabled,  after  a  long 
interval  of  time,  to  invalidate  his  own  conveyance,  against  the 
plaintiffs  possession,  and  for  the  purpose  of  obtaining  unjust 
possession  for  himself. 

On  the  same  principle,  exceptions  or  reservations  in  a  deed 
shall  be  taken  most  favorably  to  the  grantee,  and  if  not  set 
down  or  described  with  certainty,  the  grantee  shall  have  the 
benefit  that  may  arise  from  such  defect,  (e)  So  where  a  deed 
may  enure  several  ways,  the  grantee  shall  have  his  election 
which  way  to  take  it.  (/)  And  where  an  instrument  was  so 
drawn  that  it  could  not  be  ascertained  whether  it  was  intended 
for  a  bill  of  exchange  or  a  promissory  note,  it  was  held  that 
the  payee  might  regard  and  treat  it,  as  the  one  or  the  other,  at 
his  election,  (g-) 

(a)  3  Mass.  361.  (h)  4  Mass.  205. 

(c)  1  Powell  on  Con.  400  ^  seq. 

(d)  Doc  V.  Williams,  1  H.  Bl.  25. 

(e)  Jackson  v.  Hudson,  3  Johns.  375.     Jackson  v.  Gardner,  8  ib.  394. 
(/)  Heyward's  case,  2  Co.  35. 

Ig)  Edis  V.  Bury,  6  Barn.  &  Cres.  433  and  9  Dowl.  &  Ryl.  492. 


CONSTBUCTION.  315 

A  lease  for  seven,  fourteen,  or  twenty-one  years  was  given. 
The  question  arose,  at  whose  option  it  was,  at  which  of  these 
periods  the  lease  should  determine.  It  was  decided  that  it 
was  at  the  option  of  the  lessee,  on  the  principle  that  the  terms 
of  the  lease  were  to  be  consti'ued  most  strongly  against  the 
lessor  ;  or,  in  other  words,  most  favorably  to  the  lessee,  (a) 

In  many  instances  of  this  nature,  it  is  obvious  that  the  in- 
terest of  each  party  is  the  same.  But  where  the  lessor  wishes 
to  determine  the  lease,  and  the  lessee  wishes  to  hold  on,  the 
legal  presumption,  and  perhaps  the  actual  fact,  would  be  that 
it  is  for  the  advantage  of  the  lessor  to  determine  it ;  and  in 
such  a  case,  the  principle  of  this  eighth  rule  is  clearly  appli- 
cable. But  after  all  it  is  perhaps  rather  a  rule  of  law  and 
equity,  than  of  construction  of  contracts,  by  which  the  lessee's 
option  is  secured  to  him. 

In  matters  of  election,  in  alternative  contracts,  it  is  the 
settled  doctrine  that  the  option  is  in  the  party  who  is  to  per- 
form one  of  two  or  more  acts,  (b)  Such  also  is  the  doctrine 
of  the  civil  law  ;  and  Pothier  states  it  as  a  consequence  of  his 
seventh  rule  of  interpretation,  namely,  that  "  in  case  of  doubt, 
a  clause  ought  to  be  interpreted  against  the  person  who  stipu- 
lates anything,  and  in  discharge  of  the  person  who  contracts 
the  obligation." 

On  the  same  principle,  if  by  the  contract  an  election  is  given 
or  reserved,  of  two  several  things,  he  who  is  the  first  agent, 
and  who  ought  to  do  the  first  act,  shall  have  the  election,  (c) 
And  this  will  be  the  promisor  or  promisee,  according  to  the 
nature  of  the  contract,  (d)  But  if  a  person,  bound  in  the 
alternative  to  do  one  of  two  things,  by  a  certain  day,  let  the 
day  pass  without  making  an  election,  by  performing  one  or 

(a)  Dann  v.  Spurrier,  3  Bos.  &  Pul.  399,  442  and  7  Ves.  231.  See  also 
Doe  V.  Dixon,  9  East,  15.  There  were  obiter  dicta,  in  a  former  case,  (Good- 
right  V.  Richardson,  3  T.  R.  462,)  that  either  party  might,  in  such  case,  deter- 
mine the  lease. 

(b)  Layton  v.  Pearce,  1  Doug.  15.  Bac.  Ab.  Election,  B.  Com.  Dig.  Elec- 
tion, A.  2  Ev.  Poth.  (1st  Amer.  ed.)  46  ^  seq.  Smith  v.  Sanborn,  11 
Johns.  59. 

(c)  Co.  Lit.  145,  a. 

(d)  See  examples,  in  Bac.  Ab.  &  Com.  Dig.  sujyra. 


316  LAW   OF   CONTEACTS. 

the  other,  he  loses  his  election,  and  the  other  party  may  elect 
which  he  will  demand.  As,  where  one  was  bound  to  pay  six 
hundred  dollars  for  a  patent  right,  at  the  end  of  twelve  months, 
or  to  account  for  the  profits,  and  he  did  neither  at  the  end  of 
that  time,  the  other  party  was  held  entitled  to  demand  six 
hundred  dollars,  though  the  profits  were  less  than  that  sum.  (a) 

There  are  cases,  in  which  the  mere  omission  of  the  party  to 
perform  one  alternative  is  an  election  of  the  other.  As,  where 
goods  are  sold  at  six  or  nine  months'  credit,  the  purchaser, 
by  not  paying  at  the  end  of  six  months,  elects  to  take  credit 
for  nine  ;  and  he  cannot  be  sued  before  nine  months  have 
elapsed,  (b)  If,  however,  in  this  case,  the  contract  had  been, 
that  at  the  end  of  three  months,  the  buyer  should  give  his  note 
at  three  or  six  months,  and  he  had  done  neither,  doubtless, 
(on  the  principle  of  the  foregoing  cases,)  he  might  have  been 
sued  for  breach  of  his  contract,  though  not  for  the  price  of  the 
goods.  He  might  be  sued  for  the  goods,  at  the  expiration  of 
the  three  months ;  as  the  election  belonged  to  the  seller,  and 
the  time  of  credit  was  no  longer  at  the  buyer's  option,  (c) 

Where  a  contract,  a  will,  or  a  statute,  is  unintelligible,  and 
the  meaning  cannot  be  elicited  by  any  of  the  foregoing  rules 
of  construction,  it  is  inoperative  and  void,  {d) 

(a)  M'Nitt  V.  Clark,  7  Johns.  465.     More  v.  Morecomb,  Cro.  Eliz.  864. 
Abbot  V.  Rookwood,  Cro.  Jac.  594. 
(6)  Price  v.  Nixon,  5  Taunt.  338. 

(c)  Mussen  v.  Price,  4  East,  147.  Brooke  v.  White,  1  New  Rep.  330. 
Cothay  v.  Murray,  1  Campb.  335. 

(d)  4  Mass.  205,  by  Parsons,  C.  J.  Swinburne,  Part  vii.  §§  6-10.  Powell 
on  Devises,  (1st  ed.)  411.  United  States  v.  Cantril,  4  Cranch,  167.  Bac. 
Ab.  Statute,  A. 


CHAPTER   VI. 

OBLIGATION  OP   CONTRACTS. 

The  constitution  of  the  United  States,  article  I.,  §  10,  pro- 
vides, that  no  State  shall  pass  any  law  impairing  the  obligation 
of  contracts. 

The  reason  and  the  meaning  of  this  prohibition  are  to  be 
sought,  in  part  at  least,  in  the  history  of  the  country  previously 
to  the  adoption  of  this  constitution.  The  finances  of  the 
States,  and  the  ability  of  individuals,  had  been  greatly  im- 
paired by  the  burdens  imposed  during  the  war  of  the  revolu- 
tion ;  and  upon  the  establishment  of  peace,  it  was  found,  that 
the  sources  of  profit,  and  the  resources  of  enterprise  were 
closed  or  greatly  lessened,  by  the  depression  of  property  and 
the  pressure  of  private  and  public  debt. 

Severe  and  urgent  embarrassments,  however  temporary 
they  may  be  supposed  to  be,  often  induce  individuals  and 
communities  to  resort  to  sinister  and  desperate  methods  of 
relief.  Such  were  the  attempts,  in  this  instance.  The  States 
refused  to  redeem  their  paper,  issued  during  the  war  ;  and 
tender  laws  were  passed,  compelling  creditors  to  receive 
worthless  or  very  insufficient  articles  in  payment  of  their  dues. 
Divers  equally  exceptionable  legislative  shifts  and  devices  are 
to  be  found  in  the  history  of  that  period,  resorted  to  for  the 
purpose  of  relieving  the  citizens  and  the  States  from  the  per- 
formance of  meritorious  and  solemn  engagements.  Shays's 
rebellion,  in  Massachusetts,  was  excited  by  the  poverty  of  the 
people,  their  inability  to  pay  their  debts,  and  the  uniform  re- 
fusal of  the  legislature  to  emit  a  paper  currency,  subject  to 
depreciation,  and  to  be  a  tender ;  and  also  by  the  course  of 


318  LAW   OF   CONTRACTS. 

law  in  the  collection  of  debts.  Lawyers  became  odious  to 
debtors,  (who  were  a  great  majority),  by  their  agency  in  en- 
forcing the  law  ;  and  the  effects  of  the  odium  then  raised 
against  them,  and  against  men  of  capital,  were  perceptible 
long  after  prosperity  was  restored,  (a) 

But  though  the  mischiefs,  which  had  been  felt,  after  the 
close  of  the  war  of  the  revolution,  were  doubtless  the  occasion 
of  the  clause  in  the  constitution,  forbidding  the  States  to  pass 
laws  impairing  the  obligation  of  contracts,  yet  the  clause  is, 
by  no  means,  to  be  limited  to  cases  which  had  previously 
occurred.  The  convention  which  framed  that  instrument, 
warned  by  the  past,  intended  not  only  to  prevent  a  recurrence 
of  the  evils  already  endured,  but  also  to  guard  against  the 
happening  of  similar  evils;  "to  establish  justice,"  and  the 
most  perfect  faith  in  agreements,  and  to  ensure  the  sanctity 
of  private  property,  so  far  as  these  objects  can  be  secured  by 
legislative  enactments. 

This  clause  in  the  constitution  seems  not  to  have  met  with 
any  opposition  from  the  people  of  the  United  States.  In  none 
of  the  "  Debates  on  the  Constitution,"  which  have  been  seen, 
was  this  restriction  upon  the  power  of  the  States  made  a 
theme  of  complaint.  Indeed,  the  authors  of  the  Federal- 
ist, who  met  every  objection  that  they  heard  or  could  devise, 
devote  to  this  topic  only  a  single  page.  In  No.  44,  Mr.  Madi- 
son says :   "  Very  properly  have   the  convention   added   this 

(«)  The  legislature  of  Kentucky,  about  forty  years  since,  attempted,  by  a 
system  of  relief  laws,  stop  laws,  &c.,  to  remedy  the  evils  which  arose  from  a 
depreciation  of  the  bank  notes  (the  principal  currency)  of  that  State ;  and  the 
people  were  divided  and  convulsed  on  this  system  of  relief.  The  courts  of  the 
State  pronounced  these  laws  unconstitutional.  A  breach  of  their  State  con- 
stitution was  then  added,  by  abolishing  their  supreme  court  and  organizing 
another.  The  old  court  proceeded  as  before,  and  the  new  court  proceeded  as 
they  could ;  and  two  sets  of  judges,  counteracting  each  others'  proceedings, 
led  to  such  confusion  and  anarchy,  as  has  not  often  bepn  witnessed  in  civilized 
communities.  The  remedy  was  found  worse  than  the  disease,  and  the  good 
sense  of  the  people  finally  prevailed ;  and  after  the  election  of  the  governor 
and  legislature,  in  1827,  the  course  of  justice  returned  to  its  old  and  proper 
channels.  The  decisions  of  the  new  court,  in  2  Monroe,  are  not  regarded  aS 
authority. 


OBLIGATION.  319 

constitutional  bulwark  in  favor  of  private  rights ;  and  I  am 
much  deceived,  if  they  have  not,  in  so  doing,  as  faithfully  con- 
sulted the  genuine  sentiments,  as  the  undoubted  interests  of 
their  constituents.  The  sober  people  of  America  are  weary  of 
the  fluctuating  policy  which  has  directed  the  public  councils. 
They  have  seen  with  regret,  and  with  indignation,  that  sud- 
den changes  and  legislative  interference,  in  cases  affecting 
personal  rights, .become  jobs  in  the  hands  of  enterprising  and 
influential  speculators,  and  snares  to  the  more  industrious  and 
less  informed  part  of  the  community."  (a) 

This  prohibitory  clause  in  the  constitvttion  has  given  rise  to 
some  of  the  ablest  discussions  that  have  been  witnessed  in 
the  United  States. 

The  first  question  that  arises  in  this  clause,  respects  the 
meaning  of  the  term  "  contract."  As  was  stated,  ante,  1,  the 
late  chief  justice  of  the  United- States,  in  a  case  arising  on 
this  constitutional  prohibition,  defined  a  contract  to  be  "  an 
agreement  in  which  a  party  undertakes  to  do  or  not  to  do  a 
particular  thing."  And  the  decisions,  presently  to  be  cited, 
have  settled  the  point,  that  contracts  executed,  as  well  as 
executory;  conveyances  of  land,  as  well  as  commercial  en- 
gagements ;  public  grants  by  a  State  to  corporations  and  in- 
dividuals, as  well  as  private  agreements  between  citizens , 
grants  and  charters  in  existence  when  the  constitution  was 
adopted,  as  well  as  those  existing  previously,  even  before  the 
revolution ;  and  compacts  between  the  different  States  them- 
selves, are  equally  within  this  prohibitory  clause  of  the  con- 
stitution. 

This  provision  of  the  constitution  has  never  been  understood 
to  embrace  other  contracts  than  those  which  respect  property, 
or  some  object  of  value,  and  confer  rights  which  may  be  as- 
serted in  a  court  of  justice.  It  has  never  been  understood  to 
restrict  the  general  right  of  a  legislature  to  legislate  on  the 
subject  of  divorces,  (b)  Though  marriage  is,  in  one  sense,  a 
contract,  as  it  is  both  stipulatory  and  consensual,  and  cannot 

(a)  See  also,  in  this  connection,  the  remarks  of  Marshall,  C.  J.,  12  Wheat. 
354,  355. 

(6)  By  Marshall,  C.  J.,  4  "Wheat.  629.     See  10  IST.  Hamp.  385. 


320  LAW   OF   CONTRACTS. 

be  valid  without  the  concurrence  of  two  competent  minds,  yet 
it  is  sui  generis,  and,  unlike  ordinary  contracts,  is  publici  juris, 
as  it  establishes  most  important  domestic  relations.  And 
since  every  well  organized  society  is  essentially  interested  in 
the  harmony  and  decorum  of  all  its  social  relations,  marriage, 
which  is  the  most  elementary  and  useful  of  them  all,  is  regu- 
lated and  controlled  by  the  sovereign  power  of  the  State,  and 
cannot,  like  mere  contracts,  be  dissolved  by  the  mutual  con- 
sent of  the  contracting  parties  only,  but  may  be  abrogated  by 
the  sovereign  will,  either  with  or  without  the  consent  of  both 
parties,  whenever  the  public  good,  or  justice  to  both  or  either 
of  the  parties,  will  be  thereby  subserved.  Such  a  remedial 
and  conservative  power  is  inherent  in  every  independent 
nation,  and  cannot  be  surrendered  or  subjected  to  political 
restraint  or  foreign  control,  consistently  with  the  public  wel- 
fare. And  therefore  marriage,  being  much  more  than  a  con- 
tract, and  depending  essentially  on  the  sovereign  will,  is  not 
embraced  by  the  constitutional  interdiction  of  legislative  acts 
impairing  the  obligation  of  contracts.  The  obligation  is 
created  by  the  public  law,  subject  to  the  public  will,  and  not 
to  that  of  the  parties.  So  far  as  a  dissolution  of  a  marriage, 
by  public  authority,  may  be  for  the  public  good,  it  may  be 
the  exercise  of  a  legislative  function ;  but  so  far  as  it  may  be 
for  the  benefit  of  one  of  the  parties,  in  consequence  of  a  breach 
of  the  contract  by  the  other,  it  is  undoubtedly  judicial,  (a) 

The  next  question,  what  is  the  exact  import  of  the  term 
"  obligation,"  is  perhaps  not  quite  so  authoritatively  answered 
by  the  adjudications.  It  is  manifest,  that  the  obligation  of  a 
contract  is  something  different  from  the  contract  itself;  other- 
wise, the  very  phrase  would  be  senseless,  or  merely  tautolog- 
ical. 

In  Sturges  v.  Crowninshield,  (b)  Marshall,  C.  J.  says,  "  the 
law  binds  the  party  to  perform  his  undertaking ;  and  this  is, 
of  course,  the  obligation  of  his  contract."  Trimble,  J.,  (c)  says, 
"  the  obligation  of  the  contract  consists  in  the  power  and 

(a)  By  Robertson,  C.  J.,  7  Dana,  183,  184.  (b)  4  Wheat.  197. 

(c)  12  Wheat.  318.     See  also  4  Littell,  34,  47. 


OBLIGATION.  321 

efficacy  of  the  law,  which  applies  to  and  enforces  perform- 
ance of  the  contract,  or  the  payment  of  an  equivalent  for  non- 
performance. The  obligation  does  not  inhere  in  the  contract 
itself,  proprio  vig-ore,  but  in  the  law  applicable  to  the  contract." 
Indeed,  it  is  agreed  on  all  hands,  that  the  law  of  the  contract 
forms  its  obligation.  But  what  law  ?  "  All  admit,"  says 
Chief  Justice  Marshall,  "  that  the  constitution  refers  to  and 
preserves  the  legal,  and  not  the  moral  obligation  of  a  contract. 
Obligations  purely  moral  are  to  be  enforced  by  the  operation 
of  internal  and  invisible  agents;  not  by  the  agency  of  human 
laws.  The  restraints  imposed  on  the  States  by  the  constitu- 
tion are  intended  for  those  objects  which  would,  if  not  re- 
strained, be  the  subject  of  State  legislation."  (a) 

What,  then,  is  the  original  legal  obligation  of  a  contract ; 
the  moral  obligation,  that  is,  the  moral  law,  not  being  the  law 
thereof  ? 

On  one  side,  it  was  said,  that  the  universal  law  of  all  civil- 
ized nations,  which  declares  that  men  shall  perform  their 
engagements,  is  the  law  intended  in  this  clause  of  the  consti- 
tution. It  is  this  law  which  creates  the  obligation  of  a  con- 
tract made  in  a  savage  wilderness,  or  on  a  desert  island,  where 
no  municipal  law  exists.  The  writers  on  natural  and  national 
law  give  this  view  of  the  subject,  (b) 

On  the  other  side,  it  was  insisted,  that  the  framers  of  the 
constitution  had  not  the  universal  law  of  civilized  nations  in 
view,  any  more  than  the  moral  law ;  but  that  the  obligation 
intended  is  the  obligation  imposed  by  the  municipal  law  of 
the  State  where  the  contract  is  made.  Justinian's  Institutes 
were  relied  on  :  "  Obligatio  est  juris  vinculum,  quo  necessitate 
adstringimur  alicujus  ret  solvendce  secundum  nostrce  civitatis 
jura."     Book  iii.,  tit.  14.     Paley,  in  his   Moral  Philosophy, 

(a)   12  Wheat.  337. 

(6)  See  quotations,  12  Wheat.  222,  223,  in  the  margin.  See  also  Hutche- 
son's  Moral  Philosophy,  book  ii.,  c.  9,  §  1,  where  it  is  said,  "that  the  rights 
founded  on  contracts  are  of  the  perfect  sort,  to  be  pursued  even  by  force ;  and 
the  sacred  obligation  of  faith  in  contracts  appears  from  the  mischiefs  which 
must  ensue  upon  violating  it."  Heineccius,  in  his  Elements  of  the  Law  of 
Nature  and  Nations,  book  i.,  c.  14,  is  very  explicit  to  the  same  effect.  Greb- 
ner's  Philosophia  Moralis,  sive  Ethica,  et  Jus  Nature,  pars  ii.,  cap.  vii.  §  1. 
21 


322  LAW   OF   CONTRACTS. 

book  ii.,  c.  2,  says,  "  a  man  is  to  be  said  to  be  obliged,  when 
he  is  urged  by  a  violent  motive,  resulting  from  the  command 
of  another." 

Three  of  the  justices  of  the  supreme  court  of  the  United 
States  held,  that  the  constitutional  prohibition  against  passing 
laws  impairing  the  obligation  of  contracts  referred  to  the  uni- 
versal law.  The  other  four,  that  the  municipal  law  of  the 
State,  where  the  contract  is  made,  was  intended. 

This  question  cannot  often  arise.  It  was  discussed  with 
great  power,  in  the  case  of  Ogden  v.  Saunders,  (a)  and  the 
whole  case  deserves  attention.  The  question  before  the  court, 
in  that  case,  was,  whether  an  insolvent  law  of  New  York, 
which  discharged  both  the  person  of  the  debtor  and  his  future 
acquisitions  of  property,  impaired  the  obligation  of  contracts, 
as  it  respected  debts  contracted  subsequently  to  the  passing 
of  the  law.  Four  judges,  against  three,  held  such  a  law  not 
to  be  unconstitutional.  And  such  has  been  the  opinion  of 
State  courts,  before  which  the  same  question  has  been 
brought,  (b) 

One  ground,  on  which  this  question  was  argued  was,  that, 
as  the  law  existed  before  the  contract  was  made,  the  contract 
was  made  with  reference  to  the  law,  and  so  its  obligation  was 
not  impaired,  because  the  creditor  knew  that,  on  certain  con- 
tingencies, the  law  would  discharge  the  debtor,  and  therefore 
he  took  his  chance.  The  answer  given  to  this  argument  was, 
that  the  creditor  also  contracted  with  reference  to  the  consti- 
tution, and  that  if  the  statute  was  unconstitutional,  it  was  not 
law. 

Previously  to  the  decision  of  Ogden  v.  Saunders,  it  had 
been  unanimously  decided  by  the  supreme  court  of  the  United 
States,  in  Sturges  v.  Crowninshield,  (c)  that  a  statute  of  New 
York  was  unconstitutional,  which  discharged  both  the  body 
and  the  property  of  a  debtor,  so  far  as  respected  contracts 
made  before  the  statute  was  passed.     In  that  case,  the  court 

(a)  12  Wheat.  213. 

lb)  7  Johns.  Ch.  297.  16  Johns.  233.  1  Ohio,  236.  5  Mass.  509.  13 
ib.  16,  19. 

(c)  4  Wheat.  122. 


OBLIGATION.  323 

held,  that  until  congress  exercise  the  power  of  passing  uniform 
bankrupt  laws,  the  several  States  may  pass  bankrupt  or  in- 
solvent laws,  provided  they  do  not  impair  the  obligation  of 
contracts ;  that  laws  releasing  debtors  from  liability  to  im- 
prisonment, statutes  of  limitation,  &c.,  did  not  impair  the 
obligation  of  contracts ;  as  imprisonment,  and  the  time  of 
suing,  &c.,  formed  no  part  of  the  contract,  but  were  the  means 
of  enforcing  it.  Of  course,  it  was  held,  that  as  most  of  the 
insolvent  laws  of  the  States  only  discharged  the  person  of  the 
debtor,  leaving  the  obligation  to  fulfil  the  contract  in  full  force, 
and  not  exempting  even  his  future  acquisitions  from  the  reach 
of  creditors,  they  were  not  within  the  prohibitory  clause  of 
the  constitution.  "  Undoubtedly,"  said  Taney,  C.  J.,  in  1 
Howard,  315,  316,  "  a  State  may  regulate,  at  pleasure,  the 
modes  of  proceeding  in  its  courts  in  relation  to  past  contracts 
as  well  as  future.  It  may,  for  example,  shorten  the  period  of 
time  within  which  claims  shall  be  barred  by  the  statute  of 
limitations.  It  may  direct  that  the  necessary  implements 
of  agriculture,  or  the  tools  of  mechanics,  or  articles  of  neces- 
sity in  household  furniture  shall,  like  wearing  apparel,  not  be 
liable  to  execution  on  judgments.  Regulations  of  this  de- 
scription have  always  been  considered,  in  every  civilized  com- 
munity, as  properly  belonging  to  the  remedy,  to  be  exercised 
or  not  by  every  sovereignty  according  to  its  own  views  of 
policy  and  humanity.  It  must  reside  in  every  State,  to  en- 
able it  to  secure  its  citizens  from  unjust  and  harassing  liti- 
gation, and  to  protect  them  in  those  pursuits  which  are  neces- 
sary to  the  existence  and  well-being  of  every  community. 
And  although  a  new  remedy  may  be  deemed  less  convenient 
than  the  old  one,  and  may,  in  some  degree,  render  the  recovery 
of  debts  more  tardy  and  difficult,  yet  it  will  not  follow  that 
the  law  is  unconstitutional.  Whatever  belongs  merely  to  the 
remedy  may  be  altered  according  to  the  will  of  the  State, 
provided  the  alteration  does  not  impair  the  obligation  of  the 
contract.  But  if  that  effect  is  produced,  it  is  immaterial 
whether  it  is  done  by  acting  on  the  remedy  or  directly  on  the 
contract  itself.  In  either  case,  it  is  prohibited  by  the  consti- 
tution."    See  also  DeCordova  v.  City  of  Galveston,  4  Texas, 


324  LAW   OF   CONTRACTS. 

473,  474.  Paschal  v.  Perez,  7  ib.  365.  Auld  v.  Butcher,  2 
Kansas,  155,  156.  Clark  v.  Martin,  49  Penns.  State  Rep. 
299,  302.  23  Maine,  318.  4  Humph.  13.  4  Foster,  344.  13 
B.  Monroe,  282.  35  Alab.  280.  37  ib.  679.  13  Richardson, 
498.     2  Story  on  Const.  (3d  ed.)  §  1385. 

A  grant  by  a  State  is  a  contract  within  the  meaning  of  this 
prohibitory  clause.  Thus  where  the  legislature  of  Georgia 
authorized  the  sale  of  a  tract  of  wild  land,  and  a  grant  was 
made  by  letters  patent,  in  pursuance  of  the  act  of  the  legisla- 
ture, to  the  Georgia  Company,  and  a  succeeding  legislature 
declared  the  former  act  to  be  void ;  it  was  decided  that  the 
former  act  could  not  constitutionally  be  repealed,  so  as  to  re- 
scind a  sale  made  under  it.  {a)  The  same  principle  is  asserted 
in  Rehoboth  v.  Hunt,  {b)  in  Pike  v.  Dyke,  (c)  and  in  Mont- 
gomery V.  Kasson.  {d) 

In  1770,  the  officers  of  an  episcopal  parish  church  in  Vir- 
ginia purchased  a  tract  of  land  "  for  the  use  and  benefit  of 
said  church  in  said  parish."  By  previously  existing  statutes, 
and  the  common  law,  the  land  thus  purchased  became  vested, 
either  directly  or  beneficially,  in  the  episcopal  church ;  and  the 
property  remained  unimpaired  notwithstanding  the  American 
revolution.  For  it  is  a  principle  of  common  law,  that  the 
division  of  an  empire  creates  no  forfeiture  of  previously  vested 
rights  of  property.  Several  subsequent  statutes  recognized 
the  rights  of  the  church,  and  made  provision  for  the  manage- 
ment of  its  property.  But  in  1798,  all  these  statutes  were 
repealed,  as  inconsistent  with  the  principles  of  the  constitution 
of  Virginia,  and  of  religious  freedom ;  and  in  1801,  the  legis- 
lature asserted  its  right  to  all  the  property  of  the  episcopal 
church  in  the  respective  parishes  in  the  State,  and  authorized 
the  overseers  of  the  poor,  in  every  parish  where  any  glebe  land 
was  vacant,  or  should  become  so,  to  sell  it  and  appropriate 

(a)  Fletcher  v.  Peck,  6  Cranch,  87.     And  see  Bristoe  v.  Evans,  2  Over- 
ton, 341,  346. 
(h)  1  rick.  224. 

(c)  2  Greenl.  213,  217.  See  also  5  Haywood,  106.  1  Nott  &  McCord, 
401.  2  Peters,  657. 

(d)  16  Cal.  189. 


OBLIGATION.  325 

the  proceeds  to  the  use  of  the  poor  of  the  parish.  The  court 
decided,  that  even  if  the  property  had  been  granted  to  the 
church  by  the  king,  or  by  the  State,  there  could  be  no  legal 
pretence  that  it  could  be  resumed,  or  that  it  would  become  the 
property  of  the  State  in  consequence  of  the  revolution.  But, 
admitting  that  such  might  have  been  the  right  of  the  State, 
yet  the  court  held  that  a  statute  passed  in  1776  operated  as  a 
new  grant,  and  a  confirmation  of  the  title  of  the  church  lands, 
to  the  use  of  the  church,  and  vested  an  indefeasible  and  irre- 
vocable title ;  and  that  a  contrary  doctrine  would  uproot  the 
fundamental  principle  of  a  republican  government,  to  wit,  the 
right  of  the  citizens  to  the  free  enjoyment  of  property  lawfully 
acquired,  (a) 

The  supreme  court  of  North  Carolina  declared  unconstitu- 
tional and  void  a  statute  repealing  a  grant  of  lands  to  the 
University  of  that  State,  (b) 

In  1758,  the  government  of  New  Jersey,  by  a  convention  with 
the  remnant  of  the  tribe  of  Delaware  Indians,  extinguished 
their  title  to  all  the  lands  in  that  territory,  south  of  the  river 
Raritan,  by  taking  a  release  ;  in  consideration  of  which  release 
the  government  purchased  a  tract  of  land  on  which  the  In- 
dians were  to  reside.  In  the  act  of  the  legislature,  confirming 
the  convention,  it  was  provided  "  that  the  lands  to  be  pur- 
chased for  the  Indians  aforesaid  should  not  thereafter  be  sub- 
ject to  any  tax ;  any  law,  usage  or  custom  to  the  contrary 
thereof  in  any  wise  notwithstanding."  The  Indians  continued 
in  possession  of  the  land  thus  conveyed  to  them,  until  1801, 
when  they  became  desirous  to  join  their  brethren  in  Stock- 
bridge,  and  applied  to  the  legislature  of  New  Jersey  for  liberty 
to  sell  their  lands.  An  act  was  passed,  granting  this  liberty, 
but  whoUy  silent  as  to  the  privilege  of  exemption  from  taxa- 
tion annexed  to  the  land  by  the  act  of  1758.  The  commis- 
sioners, under  the  act  of  1801,  sold  the  land  in  1803,  to  George 
Painter  and  others.     In    1804,  the   legislature   repealed   the 

(a)  Terrett  v.  Taylor,  9  Cranch,  43.  See  also  Pawlet  v.  Clark,  9  Cranch, 
292.  Lowry  v.  Francis,  2  Yerger,  534.  Society  v.  New  Haven,  8  Wheat. 
464. 

(b)  University  v.  Foy,  2  Haywood,  310,  374.     Den  v.  Foy,  1  Murph.  58. 


326  LAW   OF   CONTRACTS. 

section  of  the  act  of  1758,  which  exempted  the  land  from 
taxation.  The  land  was  afterwards  taxed,  and  the  taxes  de- 
manded. The  State  court  sustained  the  tax ;  but  the  supreme 
court  of  the  United  States  held  that  the  act  of  1804  was  un- 
constitutional, as  it  impaired  the  obligation  of  "  a  contract 
clothed  in  forms  of  unusual  solemnity." 

The  privilege,  though  for  the  benefit  of  the  Indians,  was,  by 
the  terms  which  created  it,  annexed  to  the  land  itself,  and  not 
to  their  persons.  It  was  for  their  advantage  that  it  should  be 
so  annexed ;  because,  in  the  event  of  a  sale  (on  which  alone 
the  question  would  become  material)  the  value  would  be  en- 
hanced by  it.  The  State  might  have  insisted  on  a  surrender 
of  this  privilege  as  a  condition  of  permitting  the  sale.  But  as 
the  land  was  sold  with  the  assent  of  the  State,  with  all  its 
immunities,  the  purchaser  succeeded,  with  the  assent  of  the 
State,  to  all  the  Indian  rights,  and  became  entitled  to  the 
benefit  of  the  contract  between  the  State  and  them.  The 
obligation  of  that  contract  was  impaired  by  a  statute  annul- 
ling so  essential  a  part  of  it.  (a) 

In  1769,  a  charter  was  granted  by  the  crown,  incorporating 
twelve  persons  by  the  name  of  the  Trustees  of  Dartmouth 
College,  granting  to  them  and  their  successors  the  usual  cor- 
porate privileges  and  powers,  and  authorizing  the  trustees, 
w^ho  were  to  govern  the  college,  to  fill  all  vacancies  that  might 
be  created  in  their  own  body.  This  charter  was  accepted  by 
the  trustees,  and  the  property,  which  had  been  contributed  for 
the  benefit  of  the  college,  was  conveyed  to,  and  vested  in,  the 
corporate  body.  In  1816,  the  legislature  of  New  Hampshire 
undertook  to  amend  this  charter,  and  to  enlarge  and  improve 
the  corporation  of  Dartmouth  College.  The  number  of  trus- 
tees was  increased  to  twenty-one;  the  appointment  of  the 
additional  eleven  was  given  to  the  executive  of  the  State ; 
and  a  board  of  overseers,  consisting  of  twenty-five  persons, 
was  instituted,  with  power  to  inspect  and  control  the  most 

(a)  New  Jersey  v.  Wilson,  7  Cranch,  164.  See  also  Hardy  v.  Waltbam, 
7  Pick.  110.  Atwater  v.  Inhabitants  of  Woodbridge,  6  Conn.  223.  Osborne 
V.  Humphrey,  7  ib.  335.  Landon  v.  Litchfield,  11  ib.  251.  But  see  31  Conn. 
410. 


OBLIGATION.  327 

important   acts    of    the    trustees.     The   majority   of  the   old 
trustees  refused  to  accept  the  amended  charter. 

A  suit  was  brought  in  the  State  court,  by  the  old  trustees, 
against  an  officer  of  the  new  board  which  had  assumed  the 
control  of  the  institution  and  of  its  funds,  to  recover  the  prop- 
erty thus  assumed.  That  court  decided  in  favor  of  the  new 
board ;  holding  that  the  amended  charter  was  not  a  violation 
of  the  constitution,  (a)  This  decision  was  reversed  by  the 
supreme  court  of  the  United  States,  and  the  college  was  re- 
stored to  its  former  foundation,  {b) 

The  charter  was  held  to  be  a  contract ;  and  no  one  doubted 
whether  the  amendment  impaired  its  obligation.  The  chief 
question  raised  was  respecting  the  nature  of  the  corporation ; 
whether  it  was  public  or  private.  The  whole  doctrine  of 
public  and  private  corporations,  of  eleemosynary  institutions, 
&c.,  was  most  ably  discussed  ;  but  that  doctrine  is  not  to  be 
considered  in  this  place.  As  to  public  corporations,  such  as 
counties,  towns,  i&c,  it  is  not  doubted  that  the  crown,  or  par- 
liament, or  a  State  legislature,  may  modify  them  at  pleasure? 
provided  private  rights  of  property  are  not  thereby  infringed. 
It  was  admitted  by  the  court,  in  this  case,  that  if  the  charter 
were  a  grant  of  political  power ;  if  it  created  a  civil  institution 
to  be  employed  in  the  administration  of  government ;  or  if  the 
funds  of  the  college  were  public  property ;  or  if  the  State  of 
New  Hampshire,  as  a  government,  was  alone  interested  in  its 
transactions ;  the  legislature  of  the  State  might  act  according 
to  its  own  judgment,  without  restraint  of  its  power  by  any 
limitation  imposed  by  the  constitution  of  the  United  States. 
But  as  the  court  held  the  college  to  be  an  eleemosynary  insti- 
tution, endowed  with  a  capacity  to  take  property  for  objects 
not  connected  with  government ;  that  the  funds  were  bestowed 
on  the  faith  of  the  charter ;  that  the  donors  had  stipulated  for 
the  future  disposition  and  management  of  the  funds  in  the 
manner  prescribed  by  themselves  ;  and  though  neither  those 
who  contributed  the  funds  and  made  stipulations,  nor  those 

(a)  1  N.  Hamp.  111. 

(b)  4  Wheat.  518.     See  also  Norris  i'.  Abingdon  Ac-ademy,  7  Gill  &  Johns. 
7.     Regents  of  University  of  Maryland  v.  Williams,  9  ib.  365. 


328  LAW   OF   CONTRACTS. 

for  whose  benefit  they  were  contributed  and  made,  might  be 
before  the  court ;  yet  those,  whom  they  had  legally  empowered 
to  represent  them  forever,  were  entitled  to  assert  all  the  rights 
which  the  original  donors,  &c.,  possessed,  while  in  being. 

The  charter  was  held  to  be  a  contract,  to  which  the  donors, 
the  trustees,  and  the  crown  (to  whose  rights  and  obligations 
New  Hampshire  succeeded),  were  the  original  parties,  and 
clearly  within  the  letter  and  spirit  of  the  constitution.  And 
as  the  power  of  governing  the  college,  and  filling  vacancies 
in  the  board  of  trustees,  was  expressly  given  by  the  crown  to 
the  trustees  themselves,  and  their  number  was  fixed  at  twelve, 
and  was  thus  forever  to  continue,  the  alteration,  without  their 
consent,  was  of  a  character  about  which  two  opinions  could 
not  be  entertained  ;  that  it  was  utterly  subversive  of  the  con- 
tract on  the  faith  of  which  donations  were  made  to  the  col- 
lege, (a) 

The  principles  of  the  foregoing  adjudication  have  often  been 
recognized  and  acted  upon  by  the  State  judiciaries.  In  Wales 
V.  Stetson  (b)  Parsons,  C.  J.,  says,  "  the  rights  legally  vested 
in  any  corporation  cannot  be  controlled  or  destroyed  by  any 
subsequent  statute,  unless  a  power  for  that  purpose  be  re- 
served to  the  legislature  in  the  act  of  incorporation."  Hence, 
in  Nichols  v.  Bertram,  (c)  where  a  suit  was  brought  to  recover 
the  penalty  for  forcibly  passing, a  toll  gate  on  a  turnpike  road 
and  the  defence  was  that  by  statute  of  1804  no  turnpike  cor- 
poration was  entitled  to  toll  unless  there  were  a  signboard  at 
the  toll  gate,  with  the  rate  of  toll  legibly  printed  in  capital  let- 
ters ;  it  was  held,  that  though  the  letters  on  the  board  were 
not  capita/,  yet  as  they  were  larg'e,  and  as  the  act  incorporating 
the  turnpike  was  prior  to  the  statute  of  1804  and  only  required 

(a)  See  also  Allen  v.  McKeen,  1  Sumner,  276,  where  the  principles  of  this 
case  were  applied  to  statutes  of  Maine,  attempting  to  change  the  tenure  of  the 
office  of  President  of  Bowdoin  College.  See  also  2  Fairf.  118.  13  Ired.  75, 
80.  3  Jones,  (N.  C.)  207.  18  Cal.  590.  St.  John's  College  v.  The  State,  15 
Maryl.  3  74. 

(ft)  2  Mass.  146.  See  also  9  Wend.  351.  But  see  State  v.  Stebblns,  1 
Stew.  299. 

(c)  3  Pick.  342.     See  also  Derby  Turnpike  Co.  v.  Parks,  10  Conn.  522. 


OBLIGATION.  329 

the  toll  board  to  contain  the  rates  of  toll  printed  in  ''•  large  or 
capital  letters,"  the  grant  must  prevail  against  the  subsequent 
statute. 

A  statute  authorizing  certain  persons  to  pass  over  a  turn- 
pike road  without  paying  toll,  who  were  not  exempted  from 
paying  toll  by  the  act  incorporating  the  turnpike  company, 
is  unconstitutional  and  void,  if  not  accepted  by  the  com- 
pany, (a) 

The  Dedham  Bank  issued  bills  in  the  form  of  drafts  on  the 
cashier  of  Middletown  Bank  in  Connecticut,  where  its  funds 
were  deposited  for  the  payment.  These  drafts  became  a  com- 
mon currency ;  and  the  legislature  interposed,  and  enacted 
that  no  bank  should  issue  any  bill,  draft,  &c.,  payable  at  any 
place,  except  at  the  same  bank ;  and  that  every  bank  which 
had  issued  or  should  issue  any  bill,  draft,  &c.,  payable  at  any 
other  place  than  at  the  same  bank,  should  be  liable  to  pay  the 
same  in  specie  to  the  holder,  on  demand  at  said  bank,  without 
any  demand  at  the  place,  where,  on  the  face  of  it,  it  was  pay- 
able. This  statute,  so  far  as  it  applied  to  drafts  issued  before 
its  enactment,  was  held  to  be  unconstitutional.  The  obliga- 
tion of  the  drawer  of  a  bill  is  to  pay,  on  refusal  by  the  drawee, 
and  seasonable  notice  of  his  default.  This  obligation  is  im- 
paired by  a  statute  requiring  payment  to  be  made  on  different 
terms,  {b) 

A  statute  of  Alabama  provided  that  if  any  incorporated 
bank  should  not,  after  six  months  from  the  passing  of  said 
statute,  make  regular  specie  payments,  its  charter  should  be 
forfeited.  This  statute  was  held  to  be  unconstitutional  and 
void  as  to  preexisting  banks,  as  it  annexed  a  cause  of  forfeiture 
not  contained  in  the  acts  incorporating  them,  and  without  the 
consent  of  the  corporations,  (c) 

Where  a  company  was  incorporated  for  the  purpose  of 
making  a  turnpike  road,  but  sufficient  subscriptions  were 
not  obtained  to  authorize  the  granting  of  a  charter,  and  an 

(o)  Pingry  v.  Washburn,  1  Aik.  264. 
(6)  King  V.  Dedham  Bank,  15  Mass.  447. 

(c)  The  State  r.  Tombeckbee  Bank,  2  Stew.  30.  See  also  Logwood  v. 
Huntsville  Bank,  Minor,  23. 


330  LAW   OF   CONTRACTS. 

additional  statute  divided  the  contemplated  road  into  two  parts, 
and  authorized  the  granting  of  two  charters,  and  provided  that 
those  who  had  subscribed  for  stock  at  one  place,  should  be 
members  of  one  company,  and  those,  who  had  subscribed  at 
another  place,  should  be  members  of  the  other  company  ;  the 
last  statute  was  held  to  be  unconstitutional  and  void  as  to 
those  stockholders  who  had  not  agreed  to  its  provisions,  (a) 

The  legislature  of  Vermont  passed  an  act  releasing  a  debtor 
from  imprisonment,  and  directing  that  the  bond  which  he  had 
given  to  the  sheriff  for  the  liberty  of  the  prison  limits,  and 
which  had  been  assigned  to  the  creditor,  should  be  discharged- 
The  supreme  court  of  that  State  decided  that  this  act  was  un- 
constitutional, (b)  So  it  was  held  by  the  supreme  court  of 
Indiana,  that  the  legislature  could  not  deprive  a  creditor  of 
his  right  to  recover  payment  from  bail  who  were  absolutely 
fixed,  (c)  So  it  was  decided  in  Kentucky,  that  a  party,  who 
had  commenced  an  action  before  the  occupying  claimant  law 
of  1797  was  passed,  had  a  right,  by  the  constitution,  to  have 
his  cause  decided  according  to  the  rules  of  law  that  were  in 
force  when  his  suit  was  commenced,  (d)  Like  decisions  have 
been  made  in  North  Carolina  (e)  and  in  Tennessee.  (/) 

Where  a  tract  of  land,  including  a  river  not  navigable,  was 
granted  by  patent,  without  any  reservation,  or  any  restriction 
in  the  use  of  the  river,  it  was  decided  that  a  subsequent  statute, 
which  required  the  grantee  to  alter  his  dams  on  the  river,  so 
as  to  let  salmon  pass  up,  impaired  the  obligation  of  the  con- 
tract contained  in  the  patent,  and  was  void,  (g-) 

A  statute,  dividing  a  town  and  incorporating  a  new  one, 
enacted  that  the  new  town  should  be  held  to  pay  its  proportion 

(a)  Indiana,  &c.  Turnpike  v.  Phillips,  2  Pennsyl.  184. 

(b)  Starr  v.  Robinson,  1  Chip.  257.  See  also  1  Aik.  121.  2  Verm.  174, 
517.     3  Verm.  360. 

(c)  Lewis  V.  Brackenridge,  1  Blackf.  220. 

(d)  Johnson  v.  Rowland,  Pr.  Dec.  90.  And  see  also  Grayson  v.  Lilly,  7 
Monroe,  11.  January  v.  January,  ib.  544.  Pool  v.  Young,  ib.  588.  Me- 
Kinney  v.  Carroll,  5  Monroe,  98.     Lapsley  v.  Brashears,  4  Littell,  53. 

(e)  Jones  v.  Crittenden,  1  Car.  Law  Repos.  385. 
(/)  Towiisfiid  I'.  Townsend,  Peck,  1. 

(j/)  People  V.  Piatt,  17  Johns.  195. 


OBLIGATION.  331 

towards  the  support  of  paupers,  then  on  expense  in  the  old 
town.  A  subsequent  statute,  exonerating  the  new  town  from 
this  liability,  was  held  to  be  void,  as  it  impaired  the  obligation 
of  the  contract  created  by  the  statute  of  division  and  incor- 
poration, (a) 

In  4  Wheat.  207,  Marshall,  C.  J.,  said  that,  »  If,  in  a  State 
where  six  years  may  be  pleaded  in  bar  to  an  action  of  as- 
sumpsit, a  law  should  pass,  declaring  that  contracts  already 
in  existence,  not  barred  by  the  statute,  should  be  construed  to 
be  within  it,  there  would  be  little  doubt  of  its  unconstitution- 
ality." 

And  the  supreme  court  of  Massachusetts  had  previously 
declared,  that  "  if  the  legislature  of  any  State  were  to  under- 
take to  make  a  law  preventing  the  legal  remedy  upon  a  con- 
tract lawfully  made  and  binding  on  the  party  to  it,  there  is  no 
question  that  such  legislature  would,  by  such  act,  exceed  its 
legitimate  powers.  Such  an  act  must  necessarily  impair  the 
obligation  of  the  contract,  within  the  meaning  of  the  constitu- 
tion." (b)  The  same  doctrine  is  explicitly  asserted  by  Story, 
J.,  (c)  and  by  the  supreme  court  of  Maine,  (d) 

A  statute,  therefore,  providing  that  existing  contracts,  if 
made  before  a  specified  day,  shall  not  be  sued ;  or  that,  if  sued, 
they  shall  not  be  enforced,  would  be  unconstitutional,  as  im- 
pairing the  obligation  of  contracts  ;  provided  such  statute  be 
wholly  retrospective,  or  do  not  allow  a  reasonable  time  for  the 
creditor  to  bring  his  action.  And  it  will  be  found,  that  when 
statutes  of  limitation  were  first  enacted,  there  was  generally  a 
future  day  fixed,  before  which  they  were  not  to  operate  ;  and 
a  saving  of  all  actions  already  pending,  (e)  There  are  several 
instances,  under  the  provincial  government  of  Massachusetts, 
in  which  a  clause  was  inserted  in  a  newly  enacted  limitation 
act,  making  it  the  duty  of  town  officers  to  read  the  statute 
annually  in  open   town    meeting,  for  the  purpose  of  giving 

(a)  Bowdoinham  v.  Richmond,  6  Greenl.  112.         (h)  8  Mass.  430. 

(c)   2  Gallis.  141.  (^0   2  Greenl.  293,  294. 

(e)  See  English  Sts.  32  H.  VIII.  c.  2.  Brook's  Reading,  5,  6.  21  Jac.  I. 
c.  16.  Lord  Tenterden's  act,  9  Geo.  IV.  Massachusetts  Ancient  Charters, 
&c.,  175,  216,  307,  522,  672,  St.  1786,  c.  52,  1807,  c.  75,  1825,  c.  109,  §  2. 


332  LAW    OP   CONTRACTS. 

actual  notice  of  its  provisions  to  all  the  people,  (a)  The  jus- 
tices of  the  court  of  common  pleas  were  also  enjoined  to  cause 
these  statutes  to  be  read,  at  the  opening  of  their  courts,  from 
time  to  time. 

It  was  never  deemed  unjust  or  improper,  either  in  England 
or  in  this  country,  for  the  legislature  to  narrow  the  time  al- 
ready prescribed  for  the  commencement  of  actions,  provided 
reasonable  time  were  left  for  suitors  to  bring  actions  prior  to 
the  period  last  fixed.  This  is  a  regulation  of  the  remedy,  and 
not  an  impairing  of  the  obligation  of  contracts.  So  it  was 
viewed  by  the  courts,  in  the  cases  already  cited ;  and  so  it 
was  expressly  asserted  in  Call  v.  Hagger.  (b)  A  statute,  which 
should  prescribe  an  unreasonably  short  time  of  limitation  of 
suits  on  existing  demands  would  doubtless  be  held  to  be  un- 
constitutional, as  it  would  be  tantamount  to  a  denial  of  all 
remedy.     Berry  v  Ransdall,  4  Met.  (Ky.)  292. 

A  compact  between  States  is  within  the.  prohibitory  clause 
of  the  constitution.  In  one  of  the  articles  of  the  compact  be- 
tween Virginia  and  Kentucky,  it  was  declared,  that  all  private 
rights  and  interests  of  lands  within  the  said  district  (Ken- 
tucky), derived  from  the  laws  of  Virginia,  shall  remain  valid 
and  secure  under  the  laws  of  the  proposed  State,  and  shall  be 
determined  by  the  laws  now  existing  in  this  State  (Virginia). 
Acts  of  the  legislature  of  Kentucky  provided  that  persons 
evicted  from  lands,  in  certain  cases,  should  not  be  liable  for 
mesne  profits  prior  to  actual  notice  of  an  adverse  title,  and 
that  the  "  right  owner,"  on  recovering  his  estates  from  an  in- 
truder, &c.,  should  pay  for  improvements  made  by  the  intru- 
der, &c.  Under  the  laws  of  Virginia,  no  such  burdens  were 
imposed  on  the  owners  of  the  lands.  These  acts  were  unani- 
mously held  to  be  unconstitutional,  (c)  But  all  reasonable 
quieting  statutes,  passed  by  the  legislature  of  Kentucky,  are 
within  the  principles  and  practice  of  Virginia,  which  has  never 
been  without  a  statute  of  limitations,  since  1795.     Hence,  the 

(a)  Ancient  Charters,  &c.,  605,  623. 

(h)  8  Mass.  430.  See  also  Locke  v.  Dane,  9  Mass.  360.  Blackford  v.  Pel- 
tier, 1  Blackf.  36.     Bigelow  v.  Pritchard,  21  Pick.  175. 

(^c)  Green  v.  Biddle,  8  Wheat.  1.     See  also  Bass  v.  Dinwiddle,  Cooke,  130. 


OBLIGATION.  333 

Kentucky  statutes,  limiting  to  seven  years  the  time  of  bring- 
ing actions  to  recover  lands  held  by  adverse  possession,  do  not 
violate  said  compact,  though,  by  the  statute  of  Virginia  and 
the  first  statute  of  Kentucky,  twenty  years  were  allowed, 
within  which  a  claimant  might  bring  an  action  in  such 
case,  (a) 

The  foregoing  decisions  show  the  incorrectness  of  a  remark 
sometimes  made  by  courts,  that  the  prohibitory  clause  in  the 
constitution  of  the  United  States  "  was  provided  against  paper 
money,  instalment  laws,  &c.,"  (b)  and  warrant  the  suggestion 
which  has  been  previously  made,  that  though  the  evils  of  such 
laws  might  have  been  the  occasion  of  the  prohibition,  yet  the 
clause  is  not  to  be  confined  to  cases  that  had  previously  oc- 
curred. Indeed,  there  is,  in  the  same  clause,  a  specific  prohi- 
bition as  to  paper  money,  &c.  If  that  had  been  all  that  was 
in  view,  the  further  mention  of  laws  impairing  the  obligation 
of  contracts  would  have  been  tautology. 

In  Foster  v.  Essex  Bank,  (c)  it  was  held  that  an  act  pro- 
viding that  all  corporations  then  existing,  or  thereafter  to  be 
estabhshed,  whose  powers  would  expire  at  a  given  time,  should 
be  continued  as  bodies  corporate  for  three  years  beyond  the 
time  limited  in  their  charters,  for  the  purpose  of  suing  and 
being  sued,  and  closing  their  concerns,  but  not  for  continuing 
the  business  for  which  they  were  established,  was  constitu- 
tional. The  object  and  effect  of  the  act  were  not  to  impair 
the  obligation  of  contracts,  but  to  continue  such  obligation  in 
existence,  and  enforce  it. 

This  seems  not  to  differ  in  principle  from  statutes  extending 
the  time  within  which  actions  are  limited  by  previous  statutes  ; 
as  where  the  time  limited  for  commencing  a  suit  is  three  years, 
and,  before  the  expiration  of  that  time,  the  legislature  extend 
the  time  to  four  years ;  such  extending  statutes  have  always 
been  regarded  as  proper  exercises  of  legislative  authority,  as 
well  as  the  statutes,  before  referred  to,  which  narrow  the  time 
within  which  suits  shall  be  instituted. 

(a)  Hawkins  v.  Barney,  5  Peters,  457.     See  3  Met.  (Ky.)  566. 

(b)  9  Mass.  363, 

(c)  16  Mass.  245.  See  also  Lincoln  &  Kennebec  Bank  v.  Richardson,  1 
Greenl.  79. 


334  LAW   OP   CONTRACTS. 

The  legislature  of  a  State  cannot  constitutionally  repeal  the 
charter  of  a  bank,  if  such  power  be  not  reserved  in  the  char- 
ter, (a)  but  may  impose  a  tax  on  the  capital  stock,  &c.,  of  a 
bank  previously  incorporated  by  it,  unless  the  right  thus  to  tax 
has  been  expressly  relinquished ;  (b)  and  may  impose,  prospec- 
tively, a  penalty  on  such  bank,  for  refusal  or  neglect  to  pay 
its  bills  on  demand. 

A  statute  of  Pennsylvania  granted  a  stay  of  execution  under 
certain  conditions,  on  all  judgments  or  debts  upon  which  stay 
of  execution  had  been  or  might  be  waived  by  the  debtor  in 
any  original  obligation  or  contract  upon  which  judgment  had 
been  or  misfht  thereafter  be  obtained.  In  a  case  in  which 
debtors,  by  a  sealed  instrument,  authorized  an  entry  of  judg- 
ment against  them,  "  without  any  stay  of  execution  after  the 
day  of  payment,"  it  was  held  that  this  was  a  release  of  their 
right  to  a  stay  of  execution,  and  became  a  part  of  their  con- 
tract, and  that  the  legislature  could  not  constitutionally 
authorize  a  stay  of  execution  beyond  the  limit  of  that  con- 
tract, (c) 

A  statute,  under  which  contracts  are  authorized,  cannot 
constitutionally  be  repealed  or  altered  so  as  to  affect  those 
contracts,  (d) 

A  statute  providing  that  a  debtor  may  remove  his  property, 
on  which  his  creditor  has  a  judgment  lien,  without  rendering 
the  property  liable  to  sale  on  execution,  is  unconstitutional,  (e) 

A  statute  of  the  State  of  Delaware  granted  authority  to 

(a)  Michigan  State  Bank  v.  Hastings,  1  Doug.  (Mich.)  225. 

(6)  Providence  Bank  v.  Billings,  4  Peters,  514.  Judson  v.  The  State,  Mi- 
nor, 150.  Portland  Bank  v.  Apthorp,  12  Mass.  R.  252.  See  3  Head,  317. 
A  liter,  if  that  right  is  renounced  in  the  charter  of  a  bank.  Jefferson  Branch 
Bank  v.  Skelly,  1  Black,  436.  Dodge  v.  Woolsey,  18  Howard,  831.  Me- 
chanics &  Traders'  Bank  v.  Debolt,  ib.  380.  Brown  v.  Penobscot  Bank,  8 
Mass.  445.     And  see  1  Vroom,  473. 

(c)  Billmeyer  v.  Evans,  40  Penns.  State  R.  824. 

((/)  Tuolumne  Redemption  Co.  v.  Sedgwick,  15  Cal.  515.  McCanley  v. 
Brooks,  16  ib.  11.  Commonwealth  u.  New  Bedford  Bridge,  2  Gray,  339.  By 
Thomas,  J.,  8  Gray,  587.  But  a  license  to  retail  spirituous  liquors  is  not  a 
contract,  and  is  annulled  by  a  statute  prohibiting  all  sales  of  such  liquors. 
Calder  v.  Kurby,  5  Gray,  597. 

(e)  Tillotson  v.  Millard,  7  INIin.  513. 


OBLIGATION.  355 

draw  a  lottery,  and  empowered  the  managers  thereof  to  raise 
a  certain  sum,  either  by  drawing  the  lottery  themselves  or 
their  agents,  or  by  a  sale  of  the  powers  granted  by  that  stat- 
ute. And  though  the  court  did  not  regard  the  statute  as  a 
grant  or  contract,  yet  it  held  that  the  authority  thereby  dele- 
gated to  the  managers  to  make  a  contract  with  others,  was 
binding,  and  that  such  contract,  made  by  the  managers,  was 
obligatory  on  the  State,  and  that  the  obligation  thereof  would 
not  constitutionally  be  impaired  by  a  subsequent  statute,  (a) 
See  Bass  v.  Mayor  of  Nashville,  Meigs,  421. 

A  statute  of  Michigan,  inhibiting  actions  of  ejectment  by 
mortgagees  before  foreclosure,  was  held  to  be  unconstitutional 
and  void  as  to  mortgages  previously  made ;  as  it  took  away 
the  right  to  rents  and  profits,  which  constituted  a  part  of  the 
mortgage  security,  (b)  So  a  statute  shortening  the  time  al- 
lowed by  a  former  statute  for  redemption  of  a  mortgage  under 
a  power  of  sale,  was  held  unconstitutional  as  to  mortgages  in 
existence  when  the  statute  was  passed,  (c) 

The  legislature  of  Maryland  incorporated  a  company  in 
1812,  to  build  a  turnpike  road  between  the  cities  of  Baltimore 
and  Washington,  with  power  to  take  tolls,  &c. ;  and  in  1831 
chartered  a  company  to  make  a  railroad  between  the  same 
cities,  on  a  line  near,  and  parallel  with,  the  turnpike.  It  was 
held  that  the  contract  with  the  turnpike  company  was  not 
impaired  by  the  incorporation  of  the  railroad  company ;  no 
exclusive  privilege  being  granted  to  the  former  by  its  char- 
ter, (d) 

But  where  a  State  legislature  incorporated  a  company  to 
build  bridges  across  a  river  and  to  take  tolls,  with  a  clause  in 
the  incorporating  act  that  it  should  "  not  be  lawful  for  any 

(a)  State  v.  Phalen  &  Paine,  3  Harrington,  441. 

(b)  Mundy  v.  Monroe,  1  INIich.  68.  And  see  Blackwood  v.  Van  Yleet,  11 
lb.  252.     Stevens  v.  Brown,  Walker  Ch.  (Mich.)  41. 

(c)  Cargill  v.  Pow  r,  1  Mich.  369.     See  4  Littell,  34, 

(d)  Turnpike  Co.  v.  The  State,  8  Wallace,  210.  See  also  Charles  River 
Bridge  v.  Warren  Bridge,  11  Peters,  420  §■  seq.  State  v.  Noyes,  47  Maine, 
189.  Piscataqua  Bridge  v.  New  Hampshire  Bridge,  7  N.  Hamp.  35.  See 
also  Brewster  v.  Hough,  10  N.  Hamp.  146.  English  v.  New  Haven  &  North- 
ampton Co.  32  Conn.  240. 


336  LAW   OP   CONTRACTS. 

person  or  persons  to  erect  any  bridge  within  two  nniles,  either 
above  or  below  the  bridges  to  be  erected  and  maintained  in 
pursuance  "  of  said  act ;  it  was  decided,  (three  judges  dissent- 
ing,) that  this  clause  meant  and  was  a  contract,  not  only  that 
no  person  or  persons  should  erect  a  bridge  within  such  distance 
without  legislative  authority,  but  that  the  legislature  itself 
would  not  make  it  lawful  for  any  person  or  persons  so  to  do  > 
and  that  a  subsequent  statute  purporting  to  grant  authority  to 
another  company  to  build  a  bridge  within  those  limits  im- 
paired the  obligation  of  the  contract  with  the  first  company, 
and  was  therefore  unconstitutional  and  void,  (a) 

A  statute  of  Tennessee  allowing  a  defendant  the  value  of 
his  improvements  upon  land,  in  an  action  of  ejectment  brought 
against  him,  or  by  suit  for  the  same,  was  held  to  be  uncon- 
stitutional and  void,  (b) 

A  statute,  which  impairs  the  obligation  of  a  contract  made 
before  its  passage,  is  void,  whether  the  contract  exists  in  its 
original  shape  or  has  been  merged  in  a  judgment;  as  a  statute 
prohibiting  a  levy  on  property  that  was  subject  to  execution 
when  the  contract  was  made,  (c) 

There  are  decisions  on  this  subject,  which  have  not  com- 
manded general  assent. 

In  Baxter  v.  Taber,  (d)  the  court  said,  that  the  court  of  ses- 
sions had  no  authority  to  extend  prison  limits  beyond  the  land 
of  the  county  and  the  highways  communicating  with  the 
prison.  A  different  understanding  had  prevailed,  and  the  ses- 
sions had  included  private  property  in  the  prison  limits,  and 
prisoners  had  passed  over  such  property,  relying  on  the  as- 
signed limits,  as  to  the  legal  extent  of  their  liberties,  while  in 
confinement  for  debt,  and  thereby  had  committed  escapes, 
within  the  legal  construction  of  the  condition  of  their  bonds. 

(a)  Binghamton  Bridge,  3  Wallace,  52.  And  see  Boston  &  L,owell  Rail- 
road V.  Salem  &  Lowell  Railroad,  2  Gray,  1.  McRoberts  v.  Wasliburne,  10 
Min.  23.     Hartford  Bridge  Co.  v.  Union  Ferry  Co.  29  Conn.  210. 

(b)  Nelson  v.  Allen,  1  Yerg.  360. 

(c)  Forsythsu.  Marbury,  R.  M.  Charlt.  324. 

(d)  4  Mass.  861. 


OBLIGATION.  337 

By  statute  of  1818,  c.  92,  the  legislature  enacted  that  no  per- 
son, who  had  g-iven  bond  for  the  prison  liberties,  should  be 
considered  as  having  committed  an  escape  in  consequence  of 
having  entered  upon  private  estate,  &c.  The  constitutionality 
of  this  statute,  so  far  as  it  was  intended  to  operate  on  bonds 
already  forfeited,  was  strongly  controverted  in  argument,  but 
was  sustained  by  a  majority  of  the  court,  (a)  This  decision 
was  doubted  by  the  court  of  New  Hampshire,  in  the  case  of 
Woart  V.  Winnick,  (b)  and  has  never  been  deemed  sound  by 
the  profession  in  Massachusetts. 

By  the  militia  law  of  Massachusetts  (St.  1793,  c.  14,  §  3), 
persons  who  had  held  by  commission  the  office  of  subaltern, 
or  office  of  higher  rank,  were  exempted  from  enrollment  and 
duty  in  the  militia.  The  term  of  service  was  immaterial. 
This  statute  was  repealed  by  statute  of  1809,  c.  108,  by  which 
persons,  who  had  held  militia  offices  for  a  term  less  than  five 
years,  were  exempted,  on  condition  that  they  paid  two  dollars 
yearly  to  the  town  treasurer,  and  kept  themselves  furnished 
with  equipments,  and  sent  or  carried  them  to  the  inspection 
in  May.  The  court  held,  that  this  statute  was  constitutional, 
so  far  that  an  officer  who  had  held  a  commission  from  1797 
to  1799,  and  was  honorably  discharged,  was  nevertheless  lia- 
ble as  a  conditional  exempt,  (c)  This  case  seems  to  have 
been  decided  principally  on  the  ground,  that  in  time  of  war, 
&c.,  the  exigencies  of  the  State  might  require  the  services  of 
its  citizens,  and  that  such  an  exemption  would  apply  in  war 
no  less  than  in  peace,  if  allowed  at  all,  and  thus  the  public 
defence  would  be  weakened,  (d)  But  if  the  statute  of  1793 
was  a  lawful  contract  between  the  State  and  those  who 
subsequently  held  offices  in  the  militia,  the  impolicy  of  that 
contract,  however  manifest,  would  not  seem  to  prove  that  its 

(a)  Walter  v.  Bacon,  8  Mass.  468.  Locke  v.  Dane,  9  Mass.  360.  Patter- 
son V.  Philbrook,  ib.  151. 

(b)  3  N.  Hamp.  480. 

(c)  Commonwealth  v.  Bird,  12  Massi  443. 

(d)  In  49  Penn.  State  Rep.  302,  it  was  said  by  Woodward,  J.,  that  "war 
does  not  suspend  the  constitutional  rights  of  the  citizens." 

22 


338  LAW   OP   CONTRACTS. 

obligation  was  not  impaired  by  taking  from  the  officer  the 
only  benefit  which  he  probably  ever  anticipated  from  becom- 
ing party  to  that  contract. 

A  statute  of  Alabama  conferred  a  military  title,  and  settled 
an  annuity  for  life  on  Samuel  Dale,  for  services  rendered  and 
losses  incurred  by  him  in  a  war  with  the  Creek  Indians.  Be- 
fore any  payment  was  made  to  said  Dale,  this  statute  was 
repealed.  A  majority  of  the  court  of  that  State  held,  that  the 
statute  created  no  obligation  or  contract  on  the  part  of  the 
State,  and  that  the  repeal  thereof  was  not  unconstitutional,  (a) 
The  reasons  of  the  dissenting  judges  will  probably  commend 
themselves  to  the  profession. 

It  is  to  be  observed,  in  conclusion  of  the  subject  of  laws  im- 
pairing the  obligation  of  contracts,  under  the  prohibition  in 
the  constitution,  that  the  prohibitory  clause  does  not  extend 
to  a  State  law  enacted  before  the  constitution  went  into  op- 
eration, namely,  the  first  Wednesday  in  March,  1789.  {b) 

A  notice  of  two  or  three  points,  analogous  to  the  doctrines 
of  the  preceding  part  of  this  chapter  will  close  this  discussion 
of  the  law  of  contracts. 

The  rate  of  interest,  in  England,  has  several  times  been 
altered  by  statute.  The  weight  of  authority  seems  to  be,  that 
when  a  contract  bearing  interest  is  made  before  the  passing 
of  a  statute  which  reduces  or  enhances  the  rate  of  interest,  it 
will  carry  the  interest  allowed  at  the  time  the  contract  was 
made,  (c)  From  a  brief  and  probably  inaccurate  note  of 
Walker  v.   Perrin,  (d)  a  different  doctrine  is  to  be  inferred. 

(a)  Dale  v.  The  Governor,  3  Stew.  387. 

(b)  Owings  V.  Speed,  5  Wheat.  420. 

(c)  Dalison,  12,  pi.  17.  1  Hawk.  c.  29,  §  11.  Bac.  Ab.  Usury,  B.  Ord 
on  Usury,  35.  Walker  v.  Penry,  2  Vernon,  42,  78,  145.  In  4  Wheat.  207, 
Marshall,  C.  .J.,  said  :  "  If  a  law  should  declare  that  contracts  already  entered 
into,  and  receiving  the  legal  interest,  jhould  be  usurious  and  void,  either  in 
whole  or  in  part,  it  would  impair  the  obligation  of  the  contract  and  would  be 
clearly  unconstitutional." 

(d)  Pre.  Ch.  50. 


OBLIGATION,  339 

And  Twisden,  J.,  in  Rex  v.  Allen,  (a)  is  reported  to  have  said, 
that  if  the  lender  of  money  accepts  a  higher  rate  of  interest 
than  the  statute  allows,  on  a  bond  made  before  it  was  passed, 
he  would  subject  himself  to  the  penalty  of  usury,  (b) 

It  is  an  old  and  established  maxim  of  the  common  law,  that 
where  a  man  covenants  to  do  an  act  that  is  lawful,  and  an  act 
of  parliament  comes  and  makes  it  unlawful,  this  is  a  repeal 
of  the  covenant.  So,  if  a  man  covenants  not  to  do  a  thing 
which  it  was  lawful  for  him  to  do,  and  an  act  of  parliament 
comes  after  and  compels  him  to  do  it,  there  the  act  repeals 
the  covenant,  (c)  The  question  naturally  presents  itself,  how 
this  doctrine  is  affected  by  the  aforesaid  constitutional  pro- 
vision. In  The  State  v.  Jones,  1  Ired.  414,  it  was  held  that 
the  legislature  might  constitutionally  pass  an  act  changing  the 
location  of  the  seat  of  justice  in  a  county,  although  a  contract 
for  the  purchase  of  another  site  had  been  previously  made  by 
commissioners  appointed  by  law  for  that  purpose. 

So  far  as  statutes  impair  the  obligation  of  contracts,  within 
the  true  intent  of  the  constitution,  it  is  clear  that  the  above 
maxim  is  narrowed  in  its  operation.  The  constitution,  being 
the  paramount  law,  must  prevail.  The  maxim,  however,  may 
remain  true,  so  far  as  acts  of  congress  are  substituted  for  acts 
of  parliament,  and  are  within  the  legitimate  power  of  congress. 
Parliament  is  said  to  be  omnipotent,  and  the  prohibitory  clause 
in  the  constitution  does  not  restrain  congress.  That  clause 
extends  only  to  laws  passed  by  a  State  legislature,  (d) 

Congress  may  declare  war,  or  lay  embargoes,  and  thereby 
render  unlawful  the  fulfilment  of  contracts  ;  and  all  acts,  which 
congress  may  constitutionally  pass,  may  doubtless  impair  the 
obligation  of  contracts  with  which  they  interfere. 

The  cases  on  this  point,  in  the  English  books,  are  princi- 
pally those  in  which  political  movements  have  interposed 
between  the  contracting  parties,  and  rendered  the  performance 

(a)  T.  Ray.  197. 

(b)  See  also  Procter  v.  Cooper,  Pre.  Ch.  116. 

(c)  Co.  Lit.  206  a.  Bac.  Ab.  Covenant,  G.  1  Salk.  198.  12  Mod.  169. 
1  Ld.  Raym.  321.     7  Mass.  338. 

(d)  Evans  v.  Eaton,  Peters's  C.  C  322. 


340  LAW   OP   CONTRACTS. 

of  a  contract  unlawful.  Alien  enemies  cannot,  during  war, 
recover  debts,  nor  enforce  performance  of  any  agreements 
made  during  a  state  of  amity.  On  the  return  of  peace,  how- 
ever, the  rights  and  obligations  of  the  parties  are  restored. 
But  no  liability  for  non-performance  during  war  attaches  on 
the  cessation  of  hostilities.  If  the  contract  then  remain  capa- 
ble of  performance,  it  will  be  enforced  at  law.  If  it  be  a  con- 
tract which  is  wholly  defeated  by  the  intervention  of  war,  then 
the  war,  and  the  law  existing  during  war,  wholly  exonerate 
the  party  ;  "  repeal  the  covenant."  (a)  An  embargo  is  always 
regarded  as  a  temporary  suspension  of  commercial  intercourse, 
and  therefore  it  merely  postpones  the  performance  of  a  con- 
tract, (b)  There  are  some  distinctions,  in  the  English  deci- 
sions, between  an  embargo  laid  by  the  government  of  both 
the  contracting  parties,  and  by  the  government  of  one  of  the 
parties  only  ;  holding  that,  in  the  latter  case,  the  act  of  the 
government  is  the  act  of  the  party,  and  no  defence  or  excuse 
for  non-performance  of  his  engagements. 

Still,  there  doubtless  is  much  room  left  for  the  operation  of 
the  common  law  maxim,  even  under  State  legislation.  It  is 
not  easy  to  lay  down  the  limits  with  exactness.  Perhaps 
statutes  which  operate,  incidentally  only,  to  impair  the  obli- 
gation of  contracts,  and  do  not  ex  necessitate  produce  that 
effect ;  that  is,  where  such  impairing  is  not  the  inevitable,  and 
therefore  cannot  be  supposed  to  be  the  intended,  effect  of  the 
statutes;  they  will  take  effect  constitutionally,  though  con- 
tracts are  thereby  impaired.  As  if  a  contract  is  made  for  the 
erection  of  a  wooden  house  in  a  city,  by  a  given  day,  and  a 
statute,  in  the  mean  time,  prohibits  the  building  of  such  house. 
Or  if  a  man  contracts  to  build  a  house  on  a  specified  spot  of 
land,  and  the  legislature,  or  other  body  authorized  by  the 
legislature,  lay  out  a  highway  over  the  spot.  "  The  framers 
of  the  constitution,"  says  Marshall,  C.  J.,  4  Wheat.  629,  "  did 
not  intend  to  restrain  the  States  in  the  regulation  of  their  civil 

(a)  See  Toutcng  v.  Hubbard,  3  Bos.  &  Pul.  291.  Atkinson  v.  Ritchie,  10 
East,  530. 

(&)  Iladley  v.  Clarke,  8  D.  &  E.  259.  Baylies  v.  Fettyplace,  7  Mass. 
325. 


OBLIGATION.  341 

institutions  adopted  for  internal  government ;  and  that  the  in- 
strument they  have  given  to  us,  is  not  to  be  so  construed,  may- 
be admitted."  In  People  v.  Hawley,  3  Mich.  330,  it  was  held 
that  a  State,  in  the  exercise  of  its  police  powers,  may  prohibit 
any  trade  or  employment  which  is  found  to  be  injurious  to  its 
citizens ;  and  if  the  exercise  of  such  power  operates  to  prevent 
the  performance  of  contracts  previously  made,  "  it  does  not," 
said  the  court,  "  operate  directly  upon  the  contract,  and  there- 
fore is  not  within  the  prohibition  of  the  constitution  of  the 
United  States." 

By  a  law  of  Connecticut,  when  Jhe  last  day  of  grace  on  a 
promissory  note  fell  on  one  of  certain  enumerated  holidays, 
to  wit,  on  a  fast  or  thanksgiving  day,  the  fourth  of  July,  or 
Christmas,  the  note  was  payable  on  the  first  week-day  pre- 
ceding. After  a  note  had  been  given,  on  which  the  last  day 
of  grace  was  the  first  day  of  the  ensuing  January,  a  statute 
was  passed  directing  that  the  former  statute  should  be  amended 
by  inserting,  after  the  word  Christmas,  the  first  day  of  Janu- 
ary ;  and  the  court  of  that  State  decided  that  this  amendment 
operated  upon  the  parties  to  that  note,  so  that  payment  could 
be  legally  demanded  and  the  note  protested,  on  the  last  day 
of  December.     Barlow  v,  Gregory,  31  Conn.  261. 

A  statute  of  Pennsylvania  directed  the  annual  appointment, 
by  the  governor,  of  canal  commissioners,  and  their  pay  was 
prescribed  at  four  dollars  per  diem.  A  subsequent  statute, 
passed  while  commissioners  were  in  office  under  the  former, 
and  to  take  effect  from  its  passage,  reduced  their  pay  to  three 
dollars  per  diem.  The  supreme  court  of  the  United  States 
decided  that  there  was  no  contract  between  the  State  and  the 
commissioners,  and  that  the  second  statute  was  constitutional 
and  valid.  Butler  v.  Commonwealth  of  Pennsylvania,  10 
Howard,  402.  So  it  was  decided  by  the  court  of  Tennessee, 
that  the  compensation-  of  officers  of  government  may  be  re- 
duced by  the  legislature  during  the  time  for  which  such  officers 
were  appointed  ;  a  law  fixing  the  compensation  for  the  dis- 
charge of  the  duties  of  an  officer  not  constituting  a  contract 
with   him,  within   the   meaning   of  the    constitution   of  the 


342  LAW   OF   CONTRACTS. 

United  States.  Haynes  v.  The  State,  3  Humph.  480.  See 
also  6  Serg.  &  R.  323.  5  Watts  &  Serg.  418.  4  Barr,  51. 
15  Texas,  577. 

For  further  matter,  on  the  subject  of  this  chapter,  see  1 
Kent  Com.  (11th  ed.)  445  Sf  seq.  Sedgwick  on  Statutory 
and  Constitutional  Law.  Smith  on  Statute  and  Constitu- 
tional Law. 


INDEX. 

— -♦ — 

A. 

Paqe 

ABJURATION  OF  THE  REALM, 

what  it  was,  its  effects,  and  its  abrogation     .        .        .        •        84,  85 
ACCEPTANCE  OF  OFFER, 

•whether  it  binds  the  party,  who  offers,  from  the  time  when  it 

is  made,  or  from  the  time  when  he  receives  notice  thereof,  16  §'  seq. 
must  conform  to  the  terms  of  the  offer  ....  18 

{See  Offer.) 

ACCOUNT, 

action  of,  abolished  in  Massachusetts  .         .         •         .  131 

ACCOUNT  STATED, 

account  voluntarily  stated,  with  a  promise,  express  or  implied, 

to  pay  it,  formerly  held  conclusive ^4 

slu-charged  items  now  allowed  to  be  corrected  .         •  74 

ADMINISTRATORS.    {See  Executors  and  Administrators.) 
AGENTS.     {See  Attorneys,  &c.) 
ALIENS, 

alien  enemy  cannot  make  contracts  during  war     ...  95 

an  alien's  contract  made  during  peace  cannot  be  enforced 

durino-  war,  but  is  suspended  until  return  of  peace  •  95 

ASSENT  0F° PARTIES, 

must  be  mutual,  reciprocal,  concurrent  ....  14 

and  in  some  language,  oral,  written  or  symbolical,  -which  is 

mutually  intelligible 14 

is  voidable  if  obtained  by  duress,  by  mistake  concerning  the 

subject  of  the  contract,  or  by  fraud 23-35 

ASSIGNMENT  OF  CHOSES  IN  ACTION, 

what  choses  in  action  are  or  are  not  assignable  .         .    187  §-  seq. 

rights  of  assignees,  under  an  assignment ib. 

ATTAINTED  PERSONS  AND  OUTLAWS, 

cannot,  by  the  common  law,  make  contracts  for  their  own 

benefit 92,93 

ATTORNEYS  AND  OTHER  AGENTS, 

agents  the  genus ;  attorneys,  in  the  technical  sense,  a  species 

of  agents  ^^4 


344  INDEX. 


Paqe 


ATTORNEYS  AND  OTHER  AGENTS,   Continued. 

an  aiiorne?/ must  contract  in  the  name  of  his  principal        .  105 

form  of  contract,  made  by  him,  which  will  bind  his  principal  105 

agents  generally.     Rules  for  determining  whether  a  contract 
purporting,  on  its  face,  to  be  made  as  agent,  binds  the  prin- 
cipal, or  the  agent,  or  neither     ......    106-112 

present  law  as  to  liability  of  agents  for  foreign  principals  110,  111 

ratification,  by  principal,  of  contracts  made  by  one  assuming 

to  be  his  agent 112,113 

public  agent  not  personally  bound  by  contract  made  by  him 
in  behalf  of  the  government,  unless  he  pledges  his  personal 
responsibility .         .  112 


B. 

BOUNDARIES, 

construction  of,  in  conveyances  of  real  estate     .         .         .    294  S^-  seq. 

extent  of  grant,  by  individuals,  bounding  land  on  a  way,  pub- 
lic or  private,  or  on  a  stream  not  technically  navigable        296  Sf  seq. 

difference  in  the  extent  of  grants  by  individuals  and  by  na- 
tions or  states,  bounding  on  streams  ....  301 

extent,  by  the  civil  law,  by  the  common  law,  and  by  the  Mas- 
sachusetts colonial  ordinance  of  1647,  of  grants  bounding 
on  the  sea,  the  shore,  or  flats 297  ^  seq. 

extent  of  boundaries  on  ponds,  large  and  small,  in  Massachu- 
setts .......•••  298 


c. 

COMPROMISE, 

of  what  claims  a  compromise  is  a  sufficient  consideration  for  a 

promise  .         .         .         .         .         .         .         .         .       177,  178 

CONSIDERATION, 

what  the  consideration  of  a  contract  is  .         .         .         .  161 

its  necessity  to  the  validity  of  all  parol  contracts         .         .  161 

must  be  lawful  .         . 217 

(See  Unlavs^ful  Contracts.) 
a  seal  affixed  to  a  contract  imports  a  consideration  which  the 
contracting  party  is  not  permitted  to  deny ;  except  con- 
tracts in  partial  restraint  of  trade             .         •         •         -2,  161,  233 
one  legal  promise  a  good  consideration  for  another         .         .  182 

when  a  contract  is  valid,  though  part  of  the  consideration  is 
void  for  insufficiency,  or  for  illegality,  especially  under  the 
statute  of  frauds 216,  246  ^  se^. 


INDEX.  345 

Faox 

CONSIDERATION,  Continued. 

when  and  why  an  executed  consideration  will  not  support  a 

contract  .........       193-205 

gratuitous  promises  and  services  not  a  legal  consideration  183,  184 

American  doctrine  as  to  validity  of  voluntary  subscriptions 

to  public  objects 185,  186 

consideration  must  be  of  some  benefit  to  the  promisor,  or  of 

some  inconvenience  to  the  promisee        ....  163 

cases  in  which  very  slight  benefit  or  inconvenience  has  been 

held  sufficient 170,  171 

hmitation  of  the  old  doctrine  that  ynoral  obligation  is  a  sufficient 

consideration  for  a  promise 178-182 

when  forbearance  to  sue  is  a  sufficient  consideration  for  a 

promise      .....••••  172-1<6 

agreements  to  accept  part  of  an  admitted  claim,  in  satisfaction 

of  the  whole,  are  generally  void  for  want  of  consideration  192 

exceptions  to  this  rule 1^2 

as  to  consideration  arising  from  a  third  person;  that  is,  when 

A  promises  B,  on  a  consideration  arising  from  A,  to  pay 

money,  &c.  to  C,  whether  this  can  be  deemed,  in  law,  a 

contract  with  C,  on  which  he  can  maintain  an  action  in 

his  own  name  ........  205 

such  promises,  when  under  seal,  never  held  to  be  promises  to 

C .•      •      •        "^^ 

fluctuating  decisions,  on  this  point,  by  the  courts  in  England, 

and  opposite  decisions  by  American  courts      .         .         .       206-210 
latest  decisions  on  this  subject  in  England  and  in  Massachu- 
setts   ■..._._       207-210 

when  a  contract  is  void  or  voidable  because  the  consideration 

cannot  possibly  be  performed 211  Sf  seq. 

failure  of  consideration  generaWj  a\o\ds  a  contvRCt       .         .  219 

whether  this  applies  to  failure  of  title  to  real  estate  conveyed 

with  covenant  of  warranty,  the  decisions  are  not  uniform      219,  220 
CONSTITUTIONAL  LAW, 

judicial  exposition  of  the  provision  in  the  constitution  of  the 
United  States  that  no  State  shall  pass  a  law  impairing  the 
obligation  of  contracts 317  Sf  seq. 

cases  in  which  State  laws  have  been  held  to  violate  this  pro- 

^^sion 322  ^  seq. 

CONSTRUCTION, 

rules  for  the  construction  of  contracts,  with  examples  of  the 

application  of  those  rules 272-316 

apparent  intent  of  the  parties  always  to  be  regarded,  so  far 

as  the  rules  of  law  permit 274 


346  INDEX. 

Page 
CONSTRUCTION,  Continued. 

1.  the  terms  of  a  contract  are  to  be  understood  in  their  ordi- 

nary and  common  sense,  as  determined  by  usage    .         .  275 

2.  construction  is  to  be  favorable  ;  meaning  of  favorable    .         .  277 

3.  subject  matter  of  a  contract  to  be  considered  in  construing 

its  terms,  which  are  to  be  understood  in  the  sense  most 

agreeable  to  the  subject  matter 278 

cases  in  which  general  words  are  restrained  by  the  subject 

matter 279-285 

4.  the  whole  contract  to  be  regarded,  and  one  part  to  be  inter- 

preted by  another  .......  285 

5.  construction  to  be  such  that  the  whole  contract,  and  every 

part  of  it,  may  take  effect,  if  it  be  possible  by  the  rules  of 
law  and  the  parties'  intentions  .         .         .         .  287,  288 

as  to  boundaries  of  land  described  in  conveyances  thereof 
{See  Boundaries.) 

6.  if  the  words  of  a  contract  do  not  fully  express,  or  even  if  they 

are  contrary  to,  the  evident  intention  of  the  parties,  the  in- 
tention is  to  be  preferred  to  the  expression     .         .         .  303 

7.  the  time  when  a  contract  was  made  to  be  regarded  in  con- 

struing it;  and  contemporaneous  exposition  of  great  weight 

in  construction  ........  309 

but  contemporaneous  exposition  is  not  to  be  called  in  aid,  if 
the  language  is  clear  and  precise,  but  only  when  it  is 
equivocal  or  doubtful 311 

ancient  grants  to  be  expounded  as  the  law  was  when  they 

were  made  .........  309 

8.  when  terms  are  doubtful  or  ambiguous,  they  are  to  be  taken 

most  strongly  against  the  party  contracting     .         .         .  312 

but  this  rule  is  applied  in  those  cases  only  in  which  other 

rules  fail  ......  .         .  313 

CONTRACTS, 

definitions 1  ^^  seq. 

division  of;  parol,  specialty  and  of  record ;  express  and  im- 
plied ;  executory  and  executed 3  §•  seq. 

the  introduction  of  implied  promises  or  contracts  into  the 
law,  and  the  action  of  assumpsit  in  which  a  promise  is 
alleged,  were  caused  by  a  party's  right  to  wage  his  law, 
in  the  action  of  debt  on  parol  contracts  ...  9 

it  is  often  by  mere  fiction  that  a  promise  is  implied,  sometimes 
even  against  a  party's  protestations ;  the  ground  of  an  al- 
leged promise  being  justice  and  the  medium  of  enforcing 
performance  of  a  legal  and  moral  duty        .         .         .         .      4,  8,  9 
{see  consideuation,  construction,  contribution,  &c.,  unlawful 

Contracts.) 


INDEX. 


347 

Paoe 


10 


CONTRIBUTION  AND  INDEMNITY, 

when  one  of  two  or  more  joint  debtors  is  compelled  to  pay  the 
whole,  he  may  recover  of  the  others  their  proportionate 

part 

this  rule  applied  to  joint  sureties,  except  where  one  of  them 

becomes  co-surety  at  the  request  of  him  who  has  paid         .       10,  11 
as  between  wrong-doers,  the  rule  that  the  law  does  not  im- 
ply a  promise  of  contribution  or  indemnity  has  exceptions  1 1 
the  rule  applies,  wJien  two  or  more  are  sued  for  a  joint  tort, 
and  judgment  is  recovered  against  all,  but  execution  is 
levied  on  one  only ;  and  where  only  one  of  them  is  sued 
and  has  judgment  against  him,  which  he  satisfies     .        .  H 
but  the  rule  is  restricted  to  cases  in  which  the  party  seeking 
contribution  or  indemnity  knew,  or  must  be  presumed  to 
have  known,  when  he  did  the  act  for  which  he  was  held 
responsible,  that  it  was  unlawful.     Examples     .         .         •       11-13 
CORPORATIONS, 

can  make  and  enforce  no  contract  which  their  charter  does 

not  expressly  authorize,  or  which  is  not  fairly  incident  to 

the  authority  expressly  conferred  ....  160 

old  doctrine,  that  they  can  contract  only  under  their  seal,  does 

not  now  prevail ;  it  is  narrowed  in  England,  and  abrogated 

in  the  United  States 156  §■  seq. 

may  be  bound,  like  individuals,  by  implication  from  corporate 

acts,  and  be  held  answerable  in  the  action  of  assumpsit      .  156,  157 
have  incidental  power  to  incur  debts  in  the  course  of  their 

legitimate  business  .         .         •         •         •         •         •  1''' 

if  established  for  the  purpose  of  making  insurance,  they  have 

no  implied  power  to  lend  money  on  discount  of  notes  .  159,  160 
have  not  power  to  engage  as  surety  in  business  in  which  they 
have  no  interest,  and  are  not  legally  liable  on  their  accom- 
modation indorsements 1^^ 


D. 

DECEIT.     {See  Fraud.) 
DRUNKARDS, 

present  law  that  persons,  when  so  intoxicated  as  to  be  de- 
prived of  reason,  cannot  make  a  binding  contract       .         .       81,  82 
but  they  will  be  held  to  pay  for  goods  which  they  buy,  if  they 

retain  and  use  them  after  reason  returns         ...  82 

DURESS, 

what  is  such  duress  of  imprisonment  as  will  avoid  a  contract    23  §'  seq. 


348  INDEX. 


Page 


DURESS,  Continued. 

imprisonment  on  legal  process,  though  in  due  form,  if  sued  out 

maliciously  and  without  pix)bable  cause       ....  24 

or  if  one  of  the  purposes  of  an  arrest  is  to  extort  money  or 

enforce  settlement  of  a  claim  .....  24 

Duress  per  minas  is  caused  by  threats  that  produce  a  firm 
man's  fear  of  loss  of  life  or  member,  of  mayhem,  or  of 
unlawful  imprisonment        .......  25 

aliter  of  threats  of  mere  battery,  or  of  destruction  of  prop- 
erty, &c 25 

generally  held  that  duress  of  property  will  not  avoid  a  con- 
tract    25 

yet  when  one's  property  is  unlawfully  detained,  and  he  pays 
money  involuntarily,  not  by  way  of  adjustment,  but  mere- 
ly for  the  purpose  of  obtaining  the  j^i'operty,  he  may  re- 
cover back  the  money  so  paid  .....  26 

such  payment,  however,  is  held  void  on  the  ground  that  it 
was  compulsory,  and  not  that  it  was  made  under  duress  in 
its  technical  sense 26 

such  cases  turn  on  the  question  whether  the  payment  was 

voluntary  or  involuntary  ......  26 

duress  that  will  avoid  a  contract  must  be  practised  on  him 
who  makes  the  contract :  hence 

if  two  or  more  make  a  contract  by  reason  of  duress  to  one  of 

them,  it  can  be  avoided  only  by  him  who  was  under  duress  27 

but  as  husband  and  wife  are  regarded  as  one  person,  his  con- 
tract, made  to  relieve  her  from  duress,  may  be  avoided  as 
if  he  had  been  under  duress  .....  28 

and  when  one  becomes  surety  for  him  who  gives  bond  to  an 
officer  who  has  no  authority  to  require  the  principal  to  give 
it,  it  is  voidable  by  the  surety  as  well  as  by  the  principal         27,  28 

a  promise  by  B,  to  A.,  made  under  duress  by  C,  is  avoidable 

by  B 28 

how  a  contract,  made  under  duress,  may  be  rendered  valid 

by  the  party's  subsequent  acts  .....  29 

a  promise  by  a  party,  while  under  duress,  for  the  purpose  of 
gaining  his  liberty,  that  he  will  execute  a  contract  when 
at  large,  is  avoidable 29 


E. 

EXCOMMUNICATED  PERSONS, 

under  no  present  disability 94 


INDEX.  349 


EXECUTORS  AND  ADMINISTRATORS, 

are  liable,  generally,  to  the  extent  of  assets  received,  on  per- 
sonal contracts  of  the  decedent  upon  which  he  was  liable 
to  a  suit  .........  144 

also  for  expenses  of  decedent's  funeral,  and  for  rent  of  real 
estate  demised  to  him  for  a  term  longer  than  he  lived,  if 
they  occupy  it  144,  145 

since  the  statute  of  frauds,  not  liable  upon  any  special  prom- 
ise to  answer  damages  out  of  their  own  estate,  unless  the 
promise  be  in  writing     .......  146 

what  special  promise  is  required  to  be  in  writing     .         .        146  §•  seq. 

written  promise  void  unless  made  on  sufficient  consideration  147 

whether  the  consideration  needs  to  be  in  writing        .         .  2 

when  judgment  is  to  be  against  them  de  bonis  propriis,  and 

when  against  the  property  of  the  decedent         .         .         .  145,  146 

have  no  power  to  charge  decedent's  estate  by  contracts  orig- 
inating with  themselves  ......  138 

personally  liable  on  contracts  made  by  them,  on  sufficient 
consideration,  in  the  course  of  administration,  or  for  pay- 
ment of  claims  against  the  decedent,  which  he  was  bound 
to  pay 139,  140 

extent  of  their  authority  to  waive  the  defence  of  the  statute 

of  limitations 140-144 

as  to  their  authority  to  maintain  actions  for  breach  of  cove- 
nants made  with  decedents  concerning  real  estate      .         .  150,  152 

cannot  maintain,  nor  be  held  liable  to,  actions  in  the  courts 
of  any  country  or  state,  besides  that  from  which  they  de- 
rive their  authority 152 

when  the  acts  of  one  only,  where  there  are  two  or  more,  are 

regarded  in  law  as  the  acts  of  all        ....  152-154 

by  the  common  law,  neither  one  nor  a  majority,  can  sell  real 
estate  which  a  testator,  by  his  will,  directs  to  be  sold  by 
them 154 


F. 

FALSA  DEMONSTRATIO, 

when  falsa  demonstratio  of  real  estate  does  not  vitiate  the 

instrument  of  conveyance  .....         293  §'  seq. 

FRAUD, 

in  general,  fraud  that  will  avoid  a  contract  consists  in  sug- 
gesting falsehood  or  concealing  truth      ....  33 

it  is  not  the  moral  quality  of  acts  or  omissions  which  alone 

determines  their  legal  quality  and  eflfect    ....  33 


350  INDEX. 

Paob 
FRAUD,  Continued. 

certain  statements  or  concealments,  which  may  be  ethically 

wrong,  will  not  avoid  an  injm'ious  contract  thereby  induced  33  ^  seq. 

as  a  seller's  statement  of  the  quality  and  value  of  his  goods, 
the  price  he  paid  or  has  been  offered  for  them 

so  of  a  buyer's  statement  of  the  highest  price  that  he  is  au- 
thorized to  pay  for  goods,  or  of  the  value  of  them       .         .  34 

and  of  his  concealment,  by  mere  silence,  of  his  private  infor- 
mation of  facts  or  events  that  enhance  the  market  value  of 
the  goods  which  he  buys :  Aliler,  if  he  utters  a  word  tend- 
ing to  mislead  the  seller 34 

a  seller's  concealment  of  intrinsic  defects  in  personal  prop- 
erty, which  are  known  by  him,  but  which  are  not  discov- 
erable by  the  purchaser's  proper  diligence,  will  avoid  a  sale  35 

aliter,  it  seems,  in  contracts  for  the  letting  and  hiring  of  real 

estate 35 

FRAUDS,  STATUTE  OF, 

whether  the  consideration  of  the  promises  and  agreements  on 
which,  by  this  statute,  no  action  shall  be  brought,  unless 
tliey  are  in  writing,  is  required  to  be  writing  .         .  2 

the  statute  does  not  render  valid  a  written  promise  or  agree- 
ment, unless  it  be  on  a  sufficient  consideration    .         .         .  147,  162 
{See  Executors  and  Administrators.) 

G. 

GAMING, 

fair  gaming  contracts  were  not  prohibited  by  the  common 
law,  but  are  now  made  void  in  England,  by  act  of  parlia- 
ment       239,  268,  269 

in  Massachusetts  all  gaming  is  unlawful  .        .         .         .  269 

(See  Wagers.) 


H. 

HUSBAND  AND  WIFE, 

(See  Marriage.    Married  Women.) 


I. 

ILLEGAL  CONTRACTS, 

(See  Unlawful  Contracts.) 
INFANTS, 

before  persons  are  twenty-one  years  old,  they  are,  as  a  gen- 


INDEX.  351 

Page 
INFANTS,  Continued. 

eral  rule,  held   to  be   legally  incompetent  to  contract  a 

binding  obligation 36 

exceptions  to  this  rule 64-68 

the  main  exception  is  a  contract  for  necessaries  .         •  69 

what  are  and  what  are  not  necessaries  ....       69-72 

whether  liable  for  rent  unless  it  be  among  necessaries        .  67,  68 

forms  of  contract  that  bind  for  necessaries  .  .         .         .       73-76 

infants'  contracts  generally  voidable,  not  void     .         .         .  39-41 

and  may  be  affirmed  by  them  after  coming  of  age  .         .42  c^-  seq. 

what  acts,  after  coming  of  age,  will  or  will  not  affirm  (ratify) 
or  disaffirm  a  conveyance  of  real  estate  made  to  or  by  an 

infant    ..." 43-46,  56,  57 

slighter  acts  affirm  an  executed  contract  than  an  executory 

one  •  ^^ 

not   necessary  to  the  affirmance  of  a. contract  made  while 
the  party  was  an  infant,  that  he  should  know  that  he  is  not 

thereby  bound ^^ 

INSANE  PERSONS, 

(See  NoN  Compotes  Mentis.) 
INTOXICATION, 

(See  Drunkards.) 


L. 

LBflTATIONS,  STATUTE  OF, 

bar  of  removed  only  by  express  promise  .        136,  142,  143,  180 

when  part  payment  removes  the  bar  of  .         .         •         .  137,  143 

(See  Executors  and  Administrators.    Partners.) 
LORD'S  DAY, 

(See  Sunday.) 


M. 

MARRIAGE, 

at  what  ages  parties  may,  by  the  common  law,  consent  to 

marriage 64,  65 

how  parties  married  under  those  ages  may  disaffirm  the  mar- 
riage contract  65,  66 

MARRIED  WOMEN, 

trenerally  incompetent,  by  the  common  law,  to  make  an  oblig- 

°  CO 

atory  contract 

exceptions 83-87 


352  INDEX. 


Paob 


MARRIED  WOMEN,  Continued. 

as  to  contracts  made  by  them  on  representing  themselves  to 

be  single  women     ........  88 

and  as  to  promises,  after  a  husband's  death,  to  pay  debts  in- 
curred by  them  during  his  life 181,  182 

various  changes,  as  to  their  rights,  powers,  and  liabilities, 

have  been  made  by  State  legislatures      ....  91 

how  they  may  convey  their  real  estate,  and  release  dower  in 

the  estate  of  their  husbands        ......  88 

gifts  by  husbands  to  wives,  though  null  in  law,  are  sometimes 
recognized  and  enforced  by  courts  of  equity,  if  the  hus- 
band's creditors  are  not  thereby  prejudiced     ...  90 

eases  in  which,  in  Massachusetts,  such  gifts  are  held  valid  at 

law  90,  91 

MISTAKE, 

when  a  contract  is  rendered  void  by  a  mistake  as  to  identity 

of  the  subject  thereof 30-32 


N. 

NON  COMPOTES  MENTIS, 

to  wit,  all  persons  (except  drunkards)  of  such  mental  incapa- 
city as  disables  them  to  make  a  valid  contract  .         .  77 

idiots  and  insane  persons  (lunatics)  were  always  held  incom- 
petent to  contract  .......  77 

contracts  of  a  lunatic,  however,  if  made  for  necessaries  proper 

for  him,  bind  him  to  pay  for  them 78,  79 

also  his  contracts  made  during  a  lucid  interval  .         .  81 

criterion  of  mental  incapacity  to  make  a  binding  contract      .      79,80 

abolishment  of  the  old  "  notion"  that  a  person,  sued  on  his 
contract,  could  not  be  allowed,  in  defence,  to  allege  his 
incapacity 77,  78 

conveyance  of  real  estate  by  a  person  non  compos  mentis,  is 

not  void,  but  voidable.     It  conveys  a  seizin  to  the  grantee  81 

■whether  a  fair  contract  with  them,  made  by  one  who  was  not 

aware  of  their  Incapacity,  is  valid 80 

{See  Drunkards.) 


o. 


OBLIGATION  OF  CONTRACTS, 

{See  Contracts.) 


INDEX.  '         353 


OFFER, 

may  be  retracted  at  any  time  before  it  is  accepted      .         .  15 

even  where,  by  its  terms,  time  is  given  for  him  to  whom  it 
is  made  to  accept  or  reject  it;  and  acceptance  after  re- 
traction is  of  no  avail         .......  15 


P. 

PAROL  CONTRACTS, 

to  wit,  all  that  are  not  under  seal,  nor  of  record  ;  written  as 

well  as  oral  3, 4 

PARTNERS, 

definition  of  partnership,  between  the  parties  inter  se,  and  of 

ostensible,  nominal,  dormant  or  secret        ....   113,126 

when  those  who  are  not  actual  partners  are  liable  as  if  they 

were 113,  115 

who  are  permitted,  by  law,  to  make  a  contract  of  partnership  115 

mere  participation  in  profits  does  not  make  parties  partners 

inter  se       .......•••  114,  117 

partnership  in  unlawful  business  confers  no  right  on  either 

partner  against  the  other        .         .         .         .         •         .  116 

extent  of  the  implied  authority  of  each  partner  to  bind  the 

firm  by  simple  contracts  made  in  their  names     .         .        118^'  seq. 

of  the  authority  of  one  partner  to  bind  his  co-partners  by  a 

sealed  instrument  .......       124-126 

a  release  by  one  binds  all 1 25 

of  one  partner's  implied  authority  to  mortgage,  sell,  and  trans- 
fer all  the  personal  property  of  the  firm,  and  to  compromise 
debts  due  to  or  by  the  firm 119,120 

one  partner  has  not  power  to  bind  his  co-partners  by  a  con- 
tract in  the  name  of  the  firm,  respecting  business  not  within 
the  scope  of  the  partnership ;  as  to  guaranty  others'  debts, 
become  surety  for  others,  and  the  like        .         .         .         .  119 

in  a  partnership  between  attorneys,  physicians,  &c.,  one  part- 
ner has  less  authority  to  bind  the  firm  than  he  has  in  a 
trading  firm 121,122 

a  firm  is  bound  by  a  note,  &c.,  made  in  its  name  by  one  part- 
ner for  his  private  debt,  unless  the  promisee  had  notice, 
express  or  implied,  that  the  promisor  was  acting  wrong-   - 
fully 118,  119 

generally,  one  partner  can  bind  the  firm  only  by  a  contract 

made  in  its  name  :  exceptions  to  this  rule       .         .         .       122-124 

when  actions  can  or  cannot  be  maintained  by  partners  against 

each  other  during  the  partnership      ....  130-135 

23 


354  INDEX. 


PARTNERS,  Continued. 

liability  of  partners  to  creditors  of  the  firm,  after  dissolution 

of  the  partnership 136,  137 

notice  of  dissolution  generally  necessary  to  exonerate  retiring 
partner  from  liability  on  contracts  subsequently  made  by 
the  other  partners  with  those  who  formerly  dealt  with  them  136 

dormant  partners  subject  to  this  rule,  only  as  to  those  cred- 
itors who  may  have  known  them  to  be  partners  .         .  137 
death  of  a  partner  is  held  to  be  a  public  fact,  and  notice 
thereof  needs  not  to  be  given  in  order  to  exempt  the  survi- 
vors from  liabilities  in  consequence  of  the  subsequent  misuse 
of  the  firm's  name  by  one  of  the  partners            .         .            137,133 
law  in  England,  and  in  the  United  States,  as  to  the  disposition 
of  partnership  property  in  real  estate,  after  dissolution  of 
the  partnership  by  death  of  a  partner         .         .         .            127-130 
a  promise  by  one  partner,  after  dissolution,  to  pay  a  debt  of 
the  firm,  which  is  barred  by  the  statute  of  limitations,  does 
not  bind  the  other  partners,  if  notice  of  the  dissolution  has 
been  given      .......••       135-137 

one  partner  may  be  bound  individually  by  a  contract  made 
by  him  in  the  name  of  the  firm,  but  which  does  not  bind 
the  other  partners      ........  122 

POSTHUMOUS  CHILDREN, 

law  concerning  them  .......       304,  305 

POST  OBHT  CONTRACTS, 

{See  Unlawful  Contracts.) 
PRINCIPALS  AND  AGENTS, 

(^ee  Attorneys  and  other  Agents.) 

R. 

RATIFICATION  OF  CONTRACTS, 

of  contracts  made  during  infancy,  after  contracting  party 

comes  of  age 55  §'  seq. 

by  principals,  of  contracts  made  by  persons  assuming,  with- 
out authority,  to  be  their  agents     112 

by  a  firm,  of  contracts  made  by  one  of  the  partners  without 

previous  authority      ........  124 

RESTRAINT  OF  MARRIAGE, 

{See  Unlawful  Contracts.) 
RESTRAINT  OF  TRADE, 

{See  Unlawful  Contracts.) 


INDEX.  355 

s. 

PA6X 

SALE  OF  PERSONAL  PROPERTY, 

{See  Acceptance  of  Offer.     Fraud.     Unlawful  Contracts.) 
SEAMEN, 

form  of  contracts  which,  by  statutes  of  the  United  States, 

masters  of  vessels  are  required  to  make  with  seamen        97,  102,  103 
cases  in  which  contracts  with  seamen  have  been  held  insuffi- 
cient to  bind  them  under  those  statutes      .         .         .         .  99  ^  seq. 
courts  of  admiralty  apply  the  principles  of  equity  to  seamen's 
contracts,  and  jealously  watch  all  deviations,  in  their  con- 
tracts, from  these  principles 100 

in   case  of  shipwreck,  seamen   are  entitled,  in   the   United 
States,  to  full  wages,  if  enough  of  freight  and  of  the  wreck 
to  pay  such  wages  is  saved  by  their  exertions  .         .  102 

of  contracts  by  seamen,  in  fishing  voyages,  to  take  their  wages 

in  the  fish,  or  the  proceeds  of  the  fish  that  may  be  taken  103 

SLAVES, 

by  former  laws,  had  no  power  to  make  contracts,  except  con- 
cerning their  manumission      ......  96 

SPENDTHRIFTS, 

of  their  disability,  under  statutes  in  Massachusetts  and  New 

Hampshire,  to  make  contracts    .         .         .         .         .         .       95,  96 

SUNDAY, 

what  contracts  are  void  under  statutes  for  the  observance  of 

the  Lord's  Day 254-258 


T. 

TRESPASS, 

when  contracts,  express  or  implied,  to  indemnify  for  an  act  of 

trespass,  are  or  are  not  valid 11-13 

{See  Contribution  and  Indemnity.) 


u. 

UNCONSCIONABLE  CONTRACTS, 

anomalous  decisions  concerning  .....       215,  238 

UNLAWFUL  CONTRACTS, 

to  wit,  all  contracts,  whether  simple  or  by  specialty,  which 
contravene  the  principles  of  the  common  law,  the  provis- 
ions of  a  statute,  or  the  general  policy  of  the  law        .         .  221 


356  INDEX. 

Pass 
UNLAWFUL  CONTRACTS,  Continued. 

I.  Those  which  violate  the  common  law  : 

namely,  contracts  to  do  what  is  forbidden  by  the  immutable 

laws  of  God  ...  ....  222 

or  C07itra  honos  mores    ........  222 

as  contracts,  between  a  man  and  woman,  concerning  their 

future  illicit  cohabitation 222  §"  sea. 

and  contracts,  by  any  person,  which  he  knows  will  encourage 

prostitution 244,  245 

cases  in  which  a  contract  with  the  mother  of  a  bastard  child, 

by  the  reputed  father,  are  held  to  be  valid      .         .         .  223 

contracts  to  do  or  to  omit  acts,  or  in  consideration  of  doing  or 
omitting  acts,  the  doing  or  omitting  of  which  is  punishable  by 
criminal  process.     With  examples 226-229 

contrary  to  the  policy  of  the  law  : 

all  contracts  to  procure,  or  endeavor  to  procure,  an  act  of  a 
legislature,  by  any  sinister  means,  or  by  personal  influence 
on  individual  members  thereof        .....  230 

marriage  brokage  contracts,  and   contracts   in  restraint  of 

marriage  230-232 

post  orbiit  contracts    ........  238 

contracts  for  maintenance  of  suits  at  law,  and  contracts  which 
involve  champerty,  embracery,  and  the  buying  of  pre- 
tended titles 228 

contracts  to  pay  seamen  increased  wages  for  extra  work,  and 
to  pay  witnesses  more  than  the  legal  fee  for  attendance  at 
court 239,  240 

whether  a  contract  to  endeavor  to  procure  pardon  of  a  con- 
vict is  unlawful  ........  229 

contracts  in  general  restraint  of  trade         ....  232 

but  contracts  in  partial  restraint  of  trade  are  valid,  if  made 

on  a  reasonable  consideration     ......  232 

even  a  sealed  contract  for  partial  restraint  is  void,  if  made 

without  actual  consideration 232,  233 

courts,  however,  do  not  inquire  whether  the  consideration  is 

equal  in  value  to  the  restraint  agreed  on  ...  233 

decisions  as  to  the  extent  of  territory  over  which,  and  the 
time  during  which,  such  contracts  are  or  are  not  lawful,  in 
different  cases 234  ^  seq. 

a  party  may  lawfully  restrain  himself,  by  contract,  from  using 

a  secret  in  his  trade  .......  237 

contracts  to  obstruct  the  course  of  justice,  the  execution  of  legal 
process,  or  to  indemnify  officers  against  acts  known  by  them 
to  be  wrongful.     With  examples 241-245 


INDEX.  357 

Paqb 


UNLAWFUL  CONTRACTS,  Continued. 

11.  Contracts  which  violate  statute  provisions  : 

when,  if  part  only  of  a  contract  violates  a  statute,  the  remain- 
ing part  may  be  held  valid  and  enforced    ....  246-254 
{See  Consideration.) 

an  act,  or  a  contract  to  do  an  act  for  the  doing  of  which  a 
statute  merely  prescribes  a  penalty,  without  an  express 
prohibition,  is  now  held  to  be  void,  as  well  as  when  the 
statute  expressly  prohibits  the  act  or  a  contract  to  do  it        254,  259 

what  contracts  made  on  the  Lord's  Day  are  or  are  not  void, 

under  statutes  prescribing  its  observance         .         .         •       254-258 

whether  mere  knowledge,  by  a  seller  of  goods,  that  the  buyer 

intends  to  use  them  in  violation  of  law,  avoids  the  sale         .  261,  270 

the  weight  of  authority  in  England  is,  that  such  mere  knowl- 
edge prevents  the  seller  from  recovering  pay  for  the  goods, 
except  in  case  of  goods  sold  by  him  with  mere  knowledge 
that  the  buyer  intends  to  smuggle  them  .         .         .       260,  269 

cases  on  the  question  how  far  contracts  are  unlawful  and  void, 
which  are  subsequent  and  collateral  to  those  which  are  un- 
lawful, but  of  which  the  direct  and  immediate  consideration 
is  not  unlawful 116,262-269 

contracts  in  fraud  of  bankrupt  and  insolvent  acts       .         .  271 


w. 

WAGERS, 

by  the  common  law  of  England  wagers  concerning  indifferent 
matters  were  lawful,  but  are  now  made  void  by  act  of  par- 
liament       2^^ 

this  part  of  the  common  law  is  still  in  force  in  several  of  the 
States  of  the  Union,  but  not  in  New  Hampshire  nor  in  Mas- 
sachusetts         ^^^ 

but  all  wagers,  if  contrary  to  public  policy,  were  void  by  the 
common  law ;  as  wagers  on  the  question  of  war  or  peace, 
the  event  of  an  election,  the  amount  of  any  branch  of  rev- 
enue, or  on  the  life  of  a  ibreign  potentate  whose  country  is 
at  war  with  that  of  either  of  the  parties  to  the  wager  .  238,  239 


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